iw^wwiw>?('. % -*■ * Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN nenoRY of JUDGE DOUGLASS BOARDMAN FIRST DEAN OF THE aCKOOt. By his Wife and Daughter A. M. BOARDMAN and ELLEN D. WILLIAMS Cornell University Library KF 9640.A65T76 Precedents of indictments and special pi 3 1924 020 181 628 Cornell University Library The original of tiiis bool< is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924020181628 PRECEDENTS OF INDICTMENTS SPECIAL PLEAS BY \ CI^LES K. TRAIN AND F. F. HEARD, ESQUIRES, COTJNSELLOKS AT LAW. BOSTON: LITTLE, BKOWN AND COMPANY. 1855. \ Entered according to- Act of Congress in the year 1856, by CHARLES E. TRAIN AND F. F. HEARD, In tlie Clerk's Office of the District Court for the District of Massa^ CAMBRIDGE : ALLEN Ain> FABIIHAM, FIUNTERS. TO THE HON. edWard mellen, ll.d., CHIEF JUSTICE OF THE COURT OP COMMON PLEAS OF MASSACHnSETTS, THIS VOLUME IS BESFECTFUL1.Y IKSCBIBED THE AUTHOES. PREFACE. The following pages are presented to the Profession with a full knowledge that there are already several coUections of precedents of indictments and other criminal pleadings. But with deference, it is submitted that none of them meet the wants of the American bar at the present time ; and this consideration induced the authors to prepare this volume to supply the deficiency. The English collections are highly and justly appreciated ; but many of the precedents they contain were never applicable to this country, and others have^ been for a long time obsolete, thus rendering it indispensable that a book should be written with exclusive reference to American jurisprudence. The alphabetical arrangement has been preferred, as more easy of reference. The precedents have been selected and framed with great care. Many of those on the common law, have stood the test of judicial scrutiny, and have never been before published in America. Some have been col- lected from drafts in actual practice, upon which convic- tions have been had and sustained. But" the greater part, dn the statutes, are original, and have been drawn expressly for this book. Most of them are preceded and accompanied with directions and notes. An attempt has been made to A* VI PREFACE. construct them, so that they may be readily adapted to other cases. K, for any particular offence, the pleader is not able to find a precedent, by referring to the statute creating the offence, and attentively considering its operative words, he can readily adapt one of the precedents given, to the case required. , It will be noticed that certain allegations and phrases, which are still retained in the English and American pre- cedents, are omitted. It has long been settled that they are not necessary to the validity of an indictment or other criminal accusation. They only serve to encumber the records of the courts, and should be omitted. The Authors acknowledge the assistance they have derived from the works of the various writers on the criminal law ; they have availed themselves of their labors wherever they have found them useful. Free use has been made of Grab- ber's treatise on the criminal law, a work at once remarkable for its lucid style and singular accuracy, and of Starkie's excellent book on the law of criminal pleading, which is now cited in England, as direct authority.^ The latest English and American cases have been fully examined, and reference made to them. Teaming HAM, Massachusetts, August, 1855. ' Regina v. Drury, 3 Cox, C. C. 544, 546, (1849). NOTE. The editions of the principal elementary writers and reporters cited, when not otherwise expressed, are the following: — ' Archbold, Criminal Pleading, London, 1853. " " " New York, 1846. Boothby, Criminal Law, London, 1854. Carrington and Kirwan's Reports, London edition. Carrington and Marshman's Reports, London edition. Carrington and Payne's Reports, London edition. Croke's Reports, temp. Eliz. Dublin, 1791. Croke's Reports, temp. Car. Dublin, 1793. Chitty, Criminal Law, New York, 1847. Deacon, Criminal L&w, London, 1836. Dennison, Crown Cases, London edition. East's Pleas of the Crown, London, 1803. Foster, Criminal Law, London, 1776. Gabbett, Criminal Law, Dublin, 1843. Hale's Pleas of the Crown, Dublin, 1778. Hawkins' Pleas of the Crown, London, 1824. Jebb, Crown Cases, Dublin edition. Leach, Crown Cases, London, 1815. Lord Campbell's Acts, by Greaves, London, 1851. Massachusetts Reports, Rand's edition. Matthews, Criminal Law, London, 1838. Moody, Crown Cases, London e^tion. Purcell, Criminal Pleading and Evidence, Dublin, 1849. Queen's Bench Reports, London edition. Russell, Criminal Law, Philadelphia, 1845. Russell and Ryan, Crown Cases, London edition. Starkie, Criminal Pleading, London, 1828. Wilmot, Law of Burglary, London, 1851. CONTENTS, CHAPTER L PASS Abductiox 1 CHAPTER n. Aboktiok 9 CHAPTER m. Accessory 13 CHAPTER IV. Administering Chlobofohu, etc., with inteikt to commit a Felont 20 CHAPTER y. Adultert 22 CHAPTER YL Af:qpay 27 CHAPTER Vn. Aesox axd other Burning 29 X CONTENTS. CHAPTER VIIL Assault • 38 CHAPTER IX. Attempts to commit Crimes 50 CHAPTER X. Barratry 65 CHAPTER XI. Blasphemy 59 CHAPTER XII. Bribery 62 CHAPTER XHL Burglary 64 CHAPTER XIV. Cheats at Common Law, and Statutory Cheats by False Pretences 85 CHAPTER XV. Compounding Offences 136 CHAPTER XVI. Conspiracy . . i40 CHAPTER XVII. Disturbances of Public Meetings, etc 176 CONTENTS. Xi CHAPTEB XVm DuEiLrsG AND Chaixenging to Fight 179 CHAPTER XIX. Elections 183 CHAPTER XX Embezzlement . .• Igg CHAPTER XXI. Embracebt J93 CHAPTER XXH. Escape 195 CHAPTER XXm- EXTORTION 203 CHAPTER XXIV. FoBdELE Entky and Detaineb 205 CHAPTER XXV. FOEGEKT AND COUNTEKFEITING 212 CHAPTER XXVL Fornication 233 CHAPTER XXVn. Feaddulent Conveyance 234 xii CONTENTS. CHAPTER XXVIIL Homicide 244 CHAPTER XXIX. Houses of III Fame 328 CHAPTER XXX. Incest .330 CHAPTER XXXI. Laeceny 351 CHAPTER XXXn. Lewdness and Lascivious Cohabitation .... 361 CHAPTER XXXm. Libel ^ 354 CHAPTER XXXIV. Maintenance 371 CHAPTER XXXV. Malicious Mischief and Wilful Trespass . . • . .373 CHAPTER XXXVI. Mayhem 384 CHAPTER XXXVH. Nuisance 385 CONTENTS. XIU CHAPTEE XXXVin. Offences against the Public Health 399 CHAPTER XXXIX. Peejuby 405 CHAPTER XL. ' Polygamy 4'39 CHAPTER XLI. Rape axd Carnal Knowxedge op Female Children . . 442 CHAPTER XLH. Receiving Stolen Goods and Embezzled Property . . 445 CHAPTER XLm. Rescue 452 CHAPTER XLIV. Riot . . .• .456 CHAPTER XLV. Robbery ^ 459 CHAPTER XLVT. Sepulchres of the Dead 464 CHAPTER XLYH. Slung Shot 466 , B xiv CONTENTS. CHAPTER XLVni. Sodomy and Bestiality 467 CHAPTER XLIX. Threatening Letter 470 chai'ter l. Pleas 475 Index to the Precedents 489 INDEX TO CASES CITED. Anderson v. The Commonwealth, 2, 22. Andrew v. New York Bible Society, 59. Ambrose v. Kerrison, 387. Amos V. The State, 92. Anonymous, 251. B. Barefield v. The State, 62. Barrators' case,. 55. Baude's case, 46, 208. Beasley v. The State, 43. Beeley v. Wingfield, 137. Black V. The State, 37. Brtstow 17. Wright, 222. Britt V. Th4 State, 95. Brooke's case, 6 7. Brown v. The Commonwealth, 181. Bullock V. The State, 188. Burk V. The State, 443. Burrow v. The State, 87, 88. Cantrill v. The People, 47. Carpenter v. The People; 2. Cash V. The State, 27. Chapman v. The Commonwealth, 29. Clark V. The People, 32. Clary v. The Commonwealth, 144. Clifton V. The State, 338. Cole's case, 68. Colhns V. Blantem, 136. Commonwealth v. Adams, 224. V. Allen, 393. V. Ashley, 328. V. Ayer, 59. V. Ayer, 223. V. Bailey, 212. V. Bangs, 9. V. Barlow, 44. V. Bean, 378. V. Bennett, 444. V. Betton, 30. V. Blanding, 354. V. Boon, 58. V. Bradley, 440. V. Brown, 191. V. Brown, 73. V. Buzzell, 31. V. Call, 22, 23. V. Call, 93, 94, 87. V. Calef, 352. V. Catlin, 352. V. Chapman, 44, 249, 253, 404. V. Chapman, 68. V. Chapman, 354. V. Chevalier, 67. V. Clap, 354. V. Clifford, 459, 460, 461, 462. XVI INDEX TO CASES CITED. Commonwealth v. Clark, 60. V. Cook, 2. V. Cooley, 464. V. Cone, 228. V. Guiran, 32. V. Davis, 55, 56, 57. V. Davis, 93. V. Dedham, 477. V. Demain, 9. V. Dimond, 349. V. Drew, 87. V. Drum, 330. V. Dudley, 15. V. Eastman, 349. V. Eastman, 142, 144. V. Eaton, 365. V. Elwell, 24. V. Paris, 385. V. Fischblatt, 45. V. Fitch, 208. V. riynn, 60. V. Flynn, 406. V. Fuller, 230. V. Gibson, 253. V. Giles, 190, 356. V. Goodhue, 230, 443. V. Gray, 38. V. Griffin, 230. V. Hall, 393. V. Harley, 92, 94. V. Harley, 219. V. Harney, 31, 51, 69, 188, 325. V. Harrington, 50, 328. V. Haynes, 58, 351. V. Hearsey, 85. V. Honeyman, 263. V. Hope, 72, 73, 342. V. Holmes, 364, 355. V. Houghton, 214. V. Howel, 13. V. Hoxey, 1 78. V. Hulbert, 88, 89. V. Humphries, 459, 462. V. Hunt, 39. V. Hunt, 142, 144. V. Hunt, 352, 440. V. Isaaks, 22. V. James, 332. V. Kent, 231. V. Kellogg, 219. V. Kirby, 49. V. Kuapp, 16. V. Kneeland, 59, 60, 354. ■ V. Knight, 506. • V. Lafferty, 22. • V. Lazier, 249. Commonwealth v. Leach, 3 74. V. Lewis, 328. V. Libbey, 189. V. Loring, 465. V. Macomber, 37. V. Mark, 64. V. Martin, 461. V. McCuUoch, 55. V. McDonald, 50, 52. V. McKisson, 144. V. Merrifield, 336. V. Metcalf, 47. ^ V. Moore, 329. V. Morrill, 95. V. Murphy, 58, 252. V. Newell, 72, 384. f. Parker, 9. V. Parker, 435. V. Pease, 136. V. Pennock, 68. V. Pickering, 406. V. Pollard, 406. V. Pope, 181. V. Porter, 176. V. Posey, 30. V. Keardon, 23, 26. — V. Richards, 335. V. Rogers, 309. : V. Runnels, 456, 457. V. Searle, 212. V. Shattuck, 205. r. Shaw, 183, 184. V. Shedd, 141, 144. ■ V. Silsbee, 183.' V. Simpson, 186, 190. ■ V. Slack, 465. V. Smith, 58. V. Smith, 336. V. Snelling, 355, 366. V. Squire, 36, 44, 47, 67, 69. V. Stearns, 189. V. Stearns, 230. V. Stevens, 212. V. Steward, 67. V. Stone, 89. V. Strain, 89, 92. V. Symonds, 177. V. Tarbox, 354, 355. V. Taylor, 69. V. Taylor, 212. I V. Tompson, 23. V. Tubbs, 55. V. Tuck, 73, 343. ' V. Twitehell, 365. V. Van Shaack, 30. V. Yarney, 252. INBEX TO CASES CITED. XVll Commonwealth v. Wade, 31, 33. V. Walden, 375. V. Ward, 224. V. Warren, 85, 86. V. Webster, 244, 311. V. White, 342. V. White, 405. V. Wilgus, 87. V. WilBams, 66, 69, 335. V. Williams, 346. V. Wilson, 212. V. Wright, 212, 354. V. Wyman, 187. V. York, 244, Conolly V. The State, 47. Cross V. Peters, 85, 87. Crowley v. The Commonwealth, 74. D. Dameron ij. The State, 353. Davis V. The State, 46. Dean v. The Commonwealth, 206. Davoe v. The Commonwealth, 67, 73. Dias V. The State, 248, 253. Dobb's ease, 70. ' DoUarhide v. The United States, 43. Ducher v. The State, 69. Dugdale v. Kegina, 226. E. Edgecombe c. Redd, 136. Edwards v. The Commonwealth, 226. Ellis V. Blackburn, 226. Emory v. The State, 203. Farnam's case, 206. Fielding's case, 65. G. Gardenhiei- v. The State, 43. Goddard v. Smith, 56. Gordon v. Jenney, 333. Greeson u. The State, 341. Gregory v. Regina, 356. Graffins v. The Commonwealth, 385. H. Haekett v. The Commonwealth, 50. Hairson u. The State, 352. Halsey v. The State, 203. Hamilton v. Regina, 90, 93. Hammond v. Brewer, 394. Hampton v. The State, 448. Harman v. The State, 442, 443. H^rtmann v. The Commonwealth, 144. Hayward's case, 385. Hinson v. The State, 352. Hodgson's CEise, 25. Holloway v. Regina, 202. Hooper v. The State, 214. Hope V. The Commonwealth, 336, 338, 378. Hopkins v. The Commonwealh, 346, 527. Howell V. The Cominonwealth, 30. HuU V. Hull, 22. Iveson V. Moore, 56. Ivey V. The State, 1 76. Jennings v. The Commonwealth, 328. Jones V. Rice, 136, 137. Jones V. The State, 44, 73, 74. Jones' and Bevers' case, 74. Josselyn v. The Commonwealth, 67, V 74, 343. K. Keir v. Leeman, 136, 137. Kite B. The Commonwealth, 74. Kit V. The State, 459. Kingsbury v. Ellis, 137. L. Lake's case, 203. Larkin's case, 247. Lambert v. The People, 144. Lamed v. The Commonwealth, 47, 74, 344. Lavey v. Regina, 405. Leech's case, 190. Lester u. The State, 25?. Lewis V. The State, 64, 66. Lohman v. The People, 10. Long's case, 67. Lord Sanchar's case, 13. M. Mackall/s case, 14, 247. B' XVIU INDEX TO CASES CITED. Malie v. The Commonwealth, 253. Mann's case, 56. March v. The People, 144. McAllister v. The State, ?50. McBride v. The State, 42. McCoy V. The State, 44. McComas v. The State, 46. McNair v. Rempublicam, 206. MoLane v. The State, 31. McLaughlin v. The Commonwealth, 335. McQuoid V. The People, 47, 49. Mifflin V. The Commonwealth, 2. Mills V. The Commonwealth, 9, 10. Moore v. The Commonwealth, 23, 24. Murray v. Regina, 14, 439. ' N. Noden v. Johnson, 4. O. O'Connell v. The Commonwealth, 449. O'Connell v. Kegina, 449. Palfrey's case, 56, 67. Parcel's case, 59. Peace's case, 25. Peopl e The, v. Adams, 94. V. Allen, 189, 190. V. Babcock, 87. V. Badgley, 214. '- V. Bush, 50. V. Chandler, 59. V. Cotterall, 31. V. Erwin, 328. V. Galloway, 87. V. Gates, 89. V. Griffin, 94. V. Haynes, 92. —< V. Plennesey, 189. V. Holbrook, 335. V. Jackson, 332. V. Johnson, 86. V. Johnson, 87. t'. Lambei-t, 87. V. Miller, 87. !'. Ruggles, 59. V. Stetson, 87, 93., V. Stone, 85. V. "Williams, 87. V. Whaley, 203. K. Kespublica v. Campbell, 207. V. Hevice, 2. V. Honeyman, 253. V. Powell, 86. : V. Roberts, 22. V. Shryber, 208. Rex or Regina v. Abbott, 34. V. Adams, 339. V. Adey, 95. V. Airey, 91, 128. V. Aldridge, 333. V. Alford, 406. V. Allen, 442. V. Allen, 469. V. Andrews, 72. V. Ashley, 338. V. Ashmall, 11. V. Austin, 448. V. Aylett, 405, 406. V. Bailey, 25. • V. Bake, 205. V. Baker, 69, 70. V. Ball, 133. V. Ball, 31. V. Bannam, 333. ^ — V. Barran, 333. V. Barnard, 121. V. Barrators (The). V. Barton, 217. — V. Barran, 333. V. Bathurst, 205. V. Baude, 41, 208. V. Beacall, 190. V. Beech, 112. V. Beeton, 448. — V. Belstead, 340. V. Bennett, 71. V. Bennett, 406. V. Bent, 29. V. Berriman, 251. V. Biers, 143. V. Bird, 75, 339. V. Bird, 248, 481. V. Birch & Martin, 215. V. Biss, 252. V. Bloomfield, 125. V. Boardman, 218. V. Boult, 223. — V. Bond, 333, 334, 336. V. Bootyman, 190. V. Botfield, 394. V. Bowen, 88. V. Boyall, 4. V. Bramley, 339. V, Briggs, 78. • INDEX TO CASES CITED. XIX Rex or Regina v. Brooke, G7. V. Brookes, 70, 71. V. Brown, 73. V. Brunswick, 340. V. Bryan, 85. V. Bullock, 71. ■ V. Burdett, 203. V. Burdett, 356. V. Burch, 216. V. Bush, 446. V. Butler, 50. V. Butterfield, 16. V. Button, 38. 1;. Camplin, 20. V. Campbell, 252, 446. V. Calkifl, 247. V. Carlile, 59, 60. V. Carlisle, 1 74. V. Carson, 336, 337. V. Carter, 214. V. Case, 42. V. Caspar, 447. 1-. Charretie, 222. V. Child, 207. V. Clark, 251. V. Clark, 337. V. Clarke, 76. V. Coe, 10. V. Cole, 68. V. Compton, 68, 81. V. Connor, 30, 31. V. Cooper, 57, 58. V. Coulson, 91, 212. V. Cowell, 445. V. Cox, 333. V. Cox, 29. V. Craddock, 447. V. Crawford, 40. V. Crespin, 39, 446. r- V. Crisham, 14, 443. V. Crighton, 190. V. Crossley, 407. V. Cuddy, 176. U.Dale, 127. V. Dale, 248, 304. V. Damford, 460. V. Davey, 386. V. Davis, 29. V. Davis, 385. V. Deakin, 338. V. Deeley, 439. V. Delaval, 1. V. Dent, 94. V. Devonshire (Marchion- ess of) 394. V. Dilworth, 38. V. Dixon, 86. Rex or Regina v. Donnevan, 31. V. Donnally, 459. V. Dobb, 70. V. Dorny, 207. V. Douglass, 129. IT. Dowlin, 405. V. Downing, 14. V. Drake, 213. U.Dunn, 213. V. Dunnett, 223. V. Eastall, 340. V. Edsall, 216. V. Edwards, 333. V. Ellins, 230. V. Elsworth, 221, 223. V. Elsworthy, 446. V. Embden, 407. V. Evans, 251. V. Exminster, 75. V. Farnam, 206. V. Fielding, 65. V. Forsgate, 340. V. Forsyth, 337. V. Fowle, 143. V. French, 339. V. Fryf335. V. Fuller, 226. V. Fulton, 226. u. Fumeaux, 336. V. Furnival, 73. V. Gaby, 341. V. Gamlingay, 394. V. Gallears, 333, 334. V. Garland, 70. V. Gibbs, 46. V. Giddins, 461. V. Gilchrist, 212, 216. V. Gilham, 203. V. Gill, 142, 143. V. Glandfield, 31. V. Grevil, 13. V. Grey (Lord), 2. V. Grounsell, 247. V. Gruby, 88. V. Goate, 219. V- Goldstein, 216. V. Gompertz, 143. v Goodhall, 87. V. Haddock, 343. V. Hall, 460. V. Hallett, 405. V. Hallo way,. 333. V. Hamilton, 133. V. Hamilton, 144. 1!. Hanson, 38. V. Hart, 213. V. Hartall, 448. XX INDEX TO CASES CITED. Rex or Eegina v. Hartshorn, 223. V. Hardwieke, 55. V. Hawks, 405. V. Hayward, 385. V. Haynes; 86. V. Hayne, 340. V. Heath, 226. V. Henderson, 88. — : V. Henson, 390. u. Hicks, 252. V. Higgins, 50. V. Higginson, 394. V. Hifl, 95. V. Hodgson, 25. V. Hodgson, 190. V. Hogg, 252. V. Hogan, 333. V. Holland, 250. V. Holloway, 331. V. Holmes, 58. V. Holmes, 352. V. Houseman, 218. V. Howell, 71. v. Hughes, 340. V. Hughes, 405, 411. V. Hunt, 27. V. Hunt, 356. V. Hunter, 217. V. Hutchinson, 339. II. Inder, 217. V. Ion, 228. V. Jackson, 122. V. Jenks, 75. V. Jervis, 447. V. Johnstone, 460. V. Jones and Bever, 74. V. Jones, 215. V. Jones, 94, 1 24. V. Kenrick, 143. V. Kelly, 247. V. Kernon, 445. V. Kettle, 334. V. Kinnerslej', 50. V. Lad, 250. V. Lake, 203. V. Lara, 85, 93. V. Larkin, 446. V. Larkin, 247. V. Lawes, 76. V. Lavey, 406. 1-. Lloyd, 173. V. Locost, 72. V. Long, 67. V. Leech, 190. i: Loomis, 333. V. Lord Grey, 2. Rex or Regina v. Lord Sanchar, 13. V. Lovell, 219. V. Ma«kally, 14, 247. V. Madden, 447. V. Mann, 56. V. Mansfield, 332. V. Marsden, 356., V. Marsh, 50, 95. V. Marshall, 343. V. Martin, 93, 218, 247. V. Mason, 88. V. McCuUey, 333. u. McGregor, 190. V. Mclntyre, 247. V. Mears, 1, 165. V. Medley, 386. =— V. Meredith, 50. V. Minton, 29, 32. V. Mitchell, 130. V. M'Keron, 406. V. Mogg, 374. V. Moland, 92. V. Moor, 4. V. Mosley, 248, 307. V. Morris, 39, 446. V. Morris, 337. V. Munoz, 88. V. Murtagh, 337. V. Murphy, 179. — V. Napper, 46, 47. : V. Newton, 222. V. Nibbs, 332. V. Nicholas, 14, 254 . V. Nichols, 14. V. Nicholson, 253. V. Norton, 93. V. Norton, 251. V. Norton, 470. V. O'Brien, 247. V. Oldham, 83. V. Overton, 406. V. Owen, 406. V. Oxford, 336. — V. Packer, 338. '— V. Page, 20. V. Page, 72. V. Page, 231. V. Palfrey, 56, 57. V. Parcel, 56. i'. Parfitt, 75. V. Pargeter, 264. V. Parker, 122. V. Parker, 143, 144. V. Peace, 25. V. Peck, 143. V. Pelfryman, 44, 442, 461. V. Purrot, 92. INDEX TO CASES CITED. XXI Eex or Regina v. Perry, 337. V. Phelps, 14. V. Phillpotts, 406. r. Phillips, ] 0. V. Phillips, 179. r. Plestow, 94, 124. V. Powell, 76, 335. V. Powell, 213, 221. V. Prendergast, 406. V. Puckering, 334. i: Puddifoot, 333. 1-. Pulhara, 448. v: Pye, 460. — V. Badley, 335. V. Read,"l33. V. Reading, 215. V. Reeves, 216. V. Remnant, 338. V. Rew, 250. V. Richards, 71. V. Richards, 407. V. Richardson, 143. V. Rice, 179. V. Rickman, 31. V. Roberts, 339. V. Roderick, 50. V. Rogan, 449. V. Rogers, 218. V. Rogier, 397. V. Rough, 334. V. Rosiuski, 42. V. Rudge, 75. V. Rudick, 79. V. Rushworthy, 88. V. Ryan, 29. V. Rycroft, 144. V. Salmon, 30. ^ V. Sallows, 339. V. Saunders, 41. V. Scott, 341. V. Seward, 144. V. Sharwin, 247. V. Shakspeare, 68. V. Sheen, 484. V. Sharman, 223. V. Smith, 234. V. Smith, 252. V. Smith, 459. V. Smith, 72. V. Souters, 406? V. Southerton, 136. V. Spencer, 121. V. Spicer, 333. V. Spragg, 144. V. Stanton, 41. V. Statham, 338. V. Sterens, 407. Rex or Regina u. Steven ton, 394. • V. St. John, 71. V. Stone, 137, 138. V. Stott, 449. V. Stacker, 460. V. Stroud, 251, 252. V. St. Weonards, 393. V. Summers, 460. V. Syer, 65. V. Tavlor, 59. V. Taylor, 338. V. Teague, 219. V. Testicfc, 218. V. Thomas, 446. V. Thompson, 66. V. Thompson, 76. V. Thompson, 218. V. Thompson, 247. w. Tiddeman, 203, 470. V. Tomlinson, 249. V. Towle, 14. — g. Todd, 338. V. Treeve, 85. V. Tucker, 472. V. Tunstall, 56. V. Turner, 29. V. Turner, 249. V. Turner, 340, 459. V. Turweston, 394. V. Tye, 247. V. Upton, 394. V. Urlyn, 55. V. Vann, 387. V. Vaughan, 218. V. Vincent, 359. V. Villeneuve, 126. V. Waddington, 59. V. Waddington, 66, SI. V. Wakefield, 3. V. Walker, 97. 1-. Walker, 446. V. Walkden, 38. V. Wallace, 17, 18. V. Walkley, 445. V. Wardle, 460. ' — V. Warman, 247. V. Warren, 442. V. Warshaner, 335. V. Warnop, 207. V. Waters, 247. V. Waters, Ellen, 251. V. Waters, Sarah, 252. V. Watson, 351, 352. V. Watkins, 72. V. Webb, 351, 352, 385. r. Wheatlev, 85, 87. V. Wheeler, 44§. xxu INDEX TO CASES CITED. Rex or Begina v. White, 68. V. White, 385. V. Whitehouse, 143. V. Whiteman, 374. V. Webb, 351, 352. V. Webb, 385. V. West, 305. V. Wilcox, 217. V. Wilkins, 340. —. V. Wilford, 339. V. Wilkinson, 339. V. Williams', 42. V. Williams, 222. V. Williams, 222. V. Williams, 226. -^ V. Williams, 333. V. Williams, 356. V. Williams, 251. V. Willis, 252. ii. Wilson, 205. V. Wood, 70. V. Woodcock, 45^ V. Woodward, 68. V. Woodward, 338. V. Woolston, 59. V. Woolford, 447. V. WooUey, 131. V. Worley, 406. V. Wroth & Capell, 206. V. Wycherley, 9. V. Wylie, 56. V. Wymer, 338. V. Young, 85, 87. V. Young, 174. Row's case, 250. Eice V. The Commonwealth, 44. Riggs V. The State, 251. Ritchie v. The State, 32. Rogers v. The Commonwealth, 52. Ryalls V. Regina,'44, 438. S. Sampson v. The State, 27. Sampson v. The Commonwealth, 31. Salisbury v. The State, 335. Seany v. The State, 203. Sill i\ Regina, 93. Smith V. The State, 328, 3?9. Spence v. Thompson, 203. State, The v. Ames, 223. V. Avery, 22. V. Ayer, 73, 74, 75. V. Bailey, 183. V. Bailey, 328, 395. V. Bancroft, C 7. V. Barnes, 356. State, The «. Bean, 213. V. Benthal, 28. V. Bonney, 214. V. Bray, 439. V. Brown, 332. V. Branson, 22. V. Buchanan, 144. V. Burnham, 144. V. Burnham, 354. V. Butler, 19. V. Butler, 206. V. Butlar, 207. V. Carr, 212. V. Chandler, 59. V. Chitty, 57. V. Clark, 332. V. Coggswell, 203. V. Cooper, 9. II. Cooper, 22, 72. 'V. Cotton, 71. V. Coy, 43. V. Crank, 248. V. Dandy, 138. V. Dent, 43. V. Dickens, 203. V. Do well, 332. V. Downer, 47, 49. V. Dunlap, 95. V. Elliott, 38. , V. Evans, 328. V. Farley, 354. V. Farmer, 443. V. Findlay, 1. V. Furlong, 405. * V. Grant, 25. V. Glaze, 23. V. Gooch, 233. V. Greetin, 212. V. Grisham, 352. V. G. S. 66. V. Gustin, 212. V. Hailstock, 44. * V. Hailey, 47, 49. V. Harding, 205, 207. V. Haskell, 194. V. Hathaway, 406. V. Heflin, 27. V. Henderson, 354, 355, 356. V. Hewett, 144. V. Heviee, 2. V. Hinton, 22, 23. V. Hooker, 47. V. Howell, 44. V. Jim, 442. V. Justice, 85. V. Kean, 438. V. Keene, 405. I»DEX TO CASES CITED. XXIU State, The v. Kennedy, 43. V. Lash, 22. V. Lathrop, 93. V. Ledford, 27. V. Logan, 332. V. Longbottoms, 335. V. Lyon, 31. V. Maberry, 196. V. Mather, 81. V. Mefcalf, 449. V. Millard, 352. u. Mills, 87, 89, 95. V. Moore, 352. V. Moore, 74. V. Moses, 249. ' V. Mumford, 406. V. Murphy, 2, 447. V. Nelson, 448. V. Nichols, 43. V. Nixon, 328, 329. r. O'Bannon, 1, 3, 4. V. Owen, 247, 248. V. Palmer, 42. V. Palmer, 440. V. Parker, 214. V. Pearce, 22. V. Pearson, 205, 207. V. Philbrick, 89. V. Potts, 214. V. Powell, 86. V. Priddy, 28. V. Kickey, 144. V. Ripley, 144. V. Koberts, 144. V. Koberts, 22. V. Roe, 35. V. Roper, 351. V. Rout, 335. — — V. Rowley, 87. — — V. Sandy, 30. V. Seamons, 43. V. Sims, 15. V. Shryber, 208. V. Simpson, 87. V. Smith, 92, 93. V. Smith, 247. V. Somerville, 338. V. Speirin, 207. V. Squires, 74. V. Stotts, 203. V. Strat, 405, 406. V. Street, 405. V. Stroll, 85. V. Stone, 89. V. Summer, 27. V. Sutton, 443. V. Taylor, 179. State, The v. Terry, 443, 444. V. Thurston, 26, V. Tidwell, 1, 3. V. Tootle, 333. V. Thurstin, 26. V. Twitty, 212. V. Vawter, 10. V. Vittum, 25. V. Wallace, 22. V. Weaver, 213, 219. V. White, 354. V. Whitfield, 205. V. Williams, 44. V. Wilson, 64. V. Woodson, 96. Stebbing v. Snicer, 25. Stevens v. The Commonwealth, 31,35. Stevens v. The Commonwealth, 449. Stone V. The State, 249. Stone V. The State, 249. Stout V. The Commonwealth, 39, 45. SuUivant v. The State, 45. Swaggerty v. The State, 447. Sydserff v. Regina, 143. Syer's case, 65. Tabart v. Tipper, 60, 354. Taylor v. The State, 356. The Barrators' case, 55. Thomas v. The State, 64. Timothy v. Simpson, 27. Torrence v. The Commonwealth, 206. Trexler v. The State, 43. Tully V. The Commonwealth, 67. Tunstall's case, 56. Turns v. The Commonwealth, 477. Twitchellw. The Commonwealth, 144. Tyler v. The State, 92. U. TJhl V. The Commonwealth, 50. United States v. Burroughs, 388. V. Britton, 355. V. Hinman, 213. V. Lapoint, 40. V. Maunier, 249. United States v. Ross, 88. V. Warner, 254. V. Worrall, 62. Updegraph v. The Commonwealth, 59,61. XXIV INDEX TO CASES CITJ)D. Vanpool V. The Commonwealth, 206. W. Waddington's case, 66, 81. Ward !;. The People, 340. Ward V. The State, 248. Wash V. The State, 443. WillS&ms V. Ogle, 68. Williams v. The State, 44, 45. Wonson v. Sayward, 340. Wood's case, 70. Woodward's case, 68, Wright V. Cleiiient, 212, 354. Wright V. Regina, 144. Wroth & Capell's case, 206. Young V. Kex, 90. Yates V. The State, 338. Zenobio v. Axtel, 355. PRECEDENTS OF INDICTMEJ^TS. CHAPTER I, ABDUCTION. In following the principle of arranging the Precedents in an alphabetical order, (which has been preferred, as more easy of reference,) the crime of Abduction is that which first presents itself for consideration. The statute of 4 & 5 Philip and Mary has been held to be in force in this country, in South Carolina, and was not considered as limited to heiresses, or persons of quality, as mentioned in its preamble, but was "designed to promote the security and happiness of young females of all descriptions, whether poor or opulent." ^ « The date of the statute of 4 & 5 Philip and Mary," say the Massachusetts Criminal Law Commissioners, "would render it a part of our common law, provided it should be deemed applicable to our laws, institutions, and state of society; and it seems to be obviously so applicable." ^ It has been held, both in England and in this country, that a conspiracy to procure the seduction and abduction of a woman, is indictable at common law.^ > The State v. Tidwell, 5 Strobhart, 1 ; The State v. Findlay, 2 Bay, 418 ; The State v. O'Bannon, 1 Bailey, 144. See also the Report of the Massa- chusetts Criminal Law Commissioners, Abduction, § 4, note (a). ' Supplementary Report, p. 12. » Kegina v. Mears, 1 Temple & Mew, C. C. 414 ; 2 Denison, C. C. 79 ; 4 Cox, C. C. 423 ; 1 Eng. Law and Eq. K. 581 ; Kex v. Delaval, 3 Burrow, 1434 , 1 ABDUCTION. [chap. I. 1. Abduction of an unmarried woman for the purpose of pros- titution. — Mass. St. 1845, ch. 216.1 The jurors for the Commonwealth of Massachusetts, upou their oath present, that C. D. late of B. in the county of S., laborer, on the first day of June in the year of our Lord , at B. aforesaid, in the county of S., feloniously, fraudulently, and deceitfully, did entice and take away one E. F. from the house of one J. N., to a house of iU fame there situate, for the purpose of common and public prostitution at the house of ill fame aforesaid, the said E. F. being then and there an unmarried woman, of a chaste life and conversation ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. 2. Abduction of an unmarried woman under the age of sixteen years, for the purpose of effecting a clandestine mar- riage. — Mass. St. 1852, ch. 254. The jurors, etc., upon their oath present, that C. D. late of B. in the county of S., gentleman, on the first day of June in the year of our Lord , at B. in the county of S., , fraudulently and deceitfully did entice and take away one E. F. from the house of one J. N., the father of the said E. F., without the consent of the said J. N., for the purpose then and there of effecting a clandestine marriage of the said Kex V. Lord Grey, 1 East, P. C. 460 ; 3 State Trials, 519 ; Anderson v. The Commonwealth, 5 Randolph, 627; The State v. Murphy, 6 Alabama, 765. And so has a confederacy to assist a female infant to escape from her father's control, with a view to marry her against her will. MifHin v. The Com- monwealth, 5 Watts & Sergeant, 461. And see Eespnblica v. Hevice, 2 Yeates, 114. ' This statute does not apply to the case of a man's enticing an unmarried woman of a chaste life and conversation, away, for the sole purpose of illicit sexual intercourse with him alone. Such an act not being within the mean- ing of the term " prostitution," as used in the statute. Commonwealth v. Cook, 12 Metcalf, 93. In New York, the statute of 1848 has received a like construction. Carpenter v. The People, 8 Barbour, 603. CHAP. I.] ABDUCTION. 3 E. F. with one J. S., without the consent of the said J. N., the said E. F. being then and there an unmarried female under the age of sixteen years, to wit, of the age of fifteen years, and then and there living under the care and custody of the said J. N. ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. 3. Indictment for a conspiracy to procure the abduction of a female?- First Count, on St. ^ 8f 5 P. and M., ch. 8. — Did, for lucre, unlawfully conspire, by false representa- tions!, to take E. T., a girl under sixteen, from the care of M. D., and to contract matrimony with E. G. W., to the utter heaviness of her father. The jurors, etc., upon their oath present, that before and at the time of committing the offences in this and in the second count of this indictment mentioned, Margaret Daulby, PhcBbe D., Elizabeth D., and Catharine D., by lawful means, that is to say, by the consent, direction, and appointment of William Turner, esquire, the father of EUen Turner, a maid and unmarried, had the order, keeping, education, and gov- ernance of the said Ellen Turner. And the jurors aforesaid, upon their oath aforesaid, do further present, that, on the seventh day of March in the year of our Lord , at Man- chester, in the county of Lancaster, Edward Gibbon Wake- field, late of Manchester aforesaid, in the county aforesaid, gentleman, then and there being a person above the age of fourteen years ;2 William Wakefield, late of the same place, \ This indictment is taken from Rex v. Wakefield, 2 Lewin, C. C. 1. For another precedent under the statute 4 & 5 Philip and Mary, ch. 8, see The State v. Tidwell, 5 Strobhart, 1. ^ This is a necessary allegation. The State v. O'Bannon, 1 Bailey, 144. An information, under the St. 4 and 5 Philip & Mary, ch. 8, which enacts, that " If any person or persons, above the age of fourteen years, shall unlaw- fully take or convey any maid or woman child, unmarried," etc., charged, that the defendant, being above the age of fourteen years, did take a young maid away, etc. It was moved in arrest of judgment, that the information 4 ABDUCTIOIf. [chap. I. gentleman, then and there being a person above the age of fourteen years; Edward Thevenot, late of the same place, laborer, then and there being a person above the age of four- teen years ; and Frances, the wife of Edward Wakefield, late of the same place, gentleman, then and there being a person above the age of fourteen years, not having any right or authority whatever to take and convey the said Ellen Turner out of or from the possession and against the will of the said M. D., etc.; unlawfully, wickedly, and injuriously, and for the sake of lucre and gain, did conspure, combine, confederate, and agree together, and with divers other persons, whose names to the jurors aforesaid are unknown, by divers subtle stratagems and contrivances, and by false representations, unlawfully to take and convey, and to cause and procure to be taken and conveyed, the said Ellen Turner, then and there being a maid, unmarried, and within the age of sixteen years,^ to wit, of the age of fifteen years, from and out of the possession of and against the will of the said M. D., etc., then and there having, by such lawful means as aforesaid, the order, keeping, education, and governance of the said Ellen did not aver that the defendant was above the age of fourteen years at the time of the taking, but only that he being above the age of fourteen years, did take. But the court held, that the information was good, and distin- guished between the case where the existens is added to the person acting, and where it is applied to the subject of the act ; that if an indictment for a forcible entry should aver, that the defendant, on such a day, with force and arms, did enter into such a house, being the freehold of J. N., without say- ing then being the freehold, the indictment would be bad ; but that in the principal case the existens being added to the person, carried the sense to the time of the offence committed. Rex v. Moor, 2 Modern Rep. 128 ; 2 Levinz, 179. And see Rex v. Boyall, 2 Burrow, 832, 833; Noden v. Johnson, 2 Eng. Law and Eq. Rep. 201, 204. " And it seems to be a general rule," says Starkie, in his very excellent Treatise on the Law of Criminal Plead- ing, (vol. 1, 2d ed. p. 163,) " that where the criminality of the act or omission arises from the particular situation of the party, which operates aa a disquali- fication, it is unnecessary to aver that disqualification, with circumstances of time and plaee." * The indictment must aver, that the person taken away was a maid or woman child, under the age of sixteen years. It is not sufficient to describe her merely by her name. The State v. O'Bannon, 1 Bailey, 144. CHAP. I.] ABDUCTION. 5 Turner, so then and there being a maid, unmarried, and within the age of sixteen years as aforesaid, to contract matri- mony with the said Edward Gibbon "Wakefield, unknowing of and to the said William Turner, then and there being the father of the said Ellen Turner, to the utter heaviness and discomfiture of the said William Turner, and against the peace, etc. Second Count, on 4: Sf 5 Philip and Mary, cli. 8. — Did, for lucre, wnlawfully conspire to take E. T. from the care of M. D., to the great disparagement of the said E. T. And the jurors aforesaid, etc., do further present, that the said E. G. W., the said W. W., the said E. T., and F. W., being such persons as aforesaid, and not having any right or authority whatever to take and convey E. T. out of or from the possession and against the will of the said W. T., etc., afterwards, to wit, on the same day and in the year aforesaid, at Manchester aforesaid, in the county aforesaid, unlawfully, wickedly, and injuriously, and for the sake of lucre and gain, did conspire, etc., and with divers other persons, whose names to the jurors aforesaid are unknown, by divers subtle stratagems, etc., and by false representations, unlawfully to take and convey, and to cause and procure to be taken and conveyed, the said B. T., then and there being a maid, unmarried, and within the age of sixteen years as aforesaid, from and out of the possession and against the will of the said M. D., etc., they, the said M. D., etc., then and there having, by such lawful means aforesaid, the order, keeping, education, and governance of the said E. T., to the great disparagement of the said E. T., to the utter heaviness and discomfiture of the said W. T., and against the peace, etc. 1* ABDUCTION. [chap. r. Third Count, on St. 3 Hen. 7, ch. 2. — Did, for lucre, conspire to feloniously take and convey away E. T., an heiress, and to marry her; to the disparagement of herself and discom- fort of her friends. And the jurors, etc., do further present, that before and at the time of committing the offence hereinafter mentioned, the said E. T. was within the age of sixteen years, and a maid, and was the only child and heir apparent unto W. T., esquire ; the said W, T., then having substance in lands and tenements to the value of five thousand pounds by the year, to wit, at Manchester aforesaid, in the county aforesaid. And the jurors, etc., do further present, that the said E. G. W., the said W. W., the said E. T., and the said Frances W., well knowing the premises, on the day and in the year afore- said, at Manchester aforesaid, in the county aforesaid, unlaw- fully, etc.,, and for lucre, and for the sake of the said substance of the said W. T., did conspire, etc., unlawfully, feloniously, violently, and against the will of the said E. T., to take, force, and convey away the said E. T. ; and by the aid, pro- curement, and abetment of the said William Wakefield, Edward Thevenot, and Frances Wakefield, feloniously, and for lucre, and for the sake of the said substance, and against the will of the said E. T., to marry the said E. T. to the said Edward Gibbon Wakefield, to the great disparagement of the said E. T., to the utter heaviness and discomfort of her friends, and against the peace, etc. Fowrth Cmmt, on St. 3 Hen. 7, ch. 2. — Did, for lucre, unlawfully conspire to marry E. T., the only child of W. T., a man of large estate, to E. W. G., with intent to procure for the said E. G. W. the said estate, to the great damage of W. T. And the jurors aforesaid, etc., do further present, that on the same day and in the year aforesaid, the said W. T. was seized of and lawfully entitled to divers lands and tenements, CHAP. I.] ABDUCTION, 7 situate in the county palatine of Chester, and lawrfuUy pos- sessed of and entitled to divers moneys, goods, and chattels, to wit, at Manchester, in the said county of Lancaster ; and that the said E. T., on the same day, etc., was, and still is, the only daughter and child of the said W. T., and then was an infant and under the age of sixteen, that is to say, of the age of fifteen years, to wit, at Manchester, in the county of Lancaster. And the jurors, etc., do further present, that the said E. G. W., the said W. W., the said E. T., and the said F. "W., together with, etc., on, etc., at, etc., unlawfully, etc., did conspire, etc., by divers false, etc., to cause and procure the said E. T., then and there being such infant as aforesaid, to marry the said E. G. W., without the knowledge or con- sent of the said W. T., her said father; the said W. T. then, to wit, at the time of the said last-mentioned con- spiracy, and there being alive, with intent then and there and thereby to obtain and procure for the said E. G. W., divers lands, moneys, and goods of the said W. T., to the great damage of W. T., to the evil example of all others in the like case offending, and against the peace, etc. Fifth Count, on St. 3 Hen. 7, ch. 2. — Did conspire to procure E. T., an heiress, to marry E. G. W., without the knowl- edge of her father, to the great disparagement of E. T. And the jurors, etc., do further present, that on, etc., the said W. T. was seized of and lawfully entitled to divers lands and tenements, situate in the county palatine of Chester, and lawfully possessed of and entitled to divers moneys, goods, and chattels, to wit, at Manchester, in the county of Lancas- ter ; and that the said E. T., on, etc., was, and still is, the only daughter and child of the said W. T., and then was an infant and under the age of sixteen years, that is to say, of the age of fifteen years, to wit, at Manchester, in the said county of Lancaster. And the jurors, etc., do further present, that the said E. G. W., the said W. W., the said E. T., and the said F. W., together with, etc., on, etc., at, etc., unlaw- fully, etc., did conspire, etc., by divers false, etc., to cause and 8 ^ ABDUCTION. [chap. I. procure the said E. T., then and there being such infant as aforesaid, to marry the said E. G. W., without the knowledge or consent of the said W. T., her said father, the said W. T., then, to wit, at the time of the said last-mentioned conspiracy and there being alive, to the great disparagement of the said E. T., etc. 4. Procuring the defilement of a girl under twenty years of age?- The jurors, etc., upon their oath present, that C. D. late of B. in the county of S., laborer, on the first day of June in the year of our Lord , at B. aforesaid, in the county aforesaid, did unlawfully, falsely pretend and represent to one A. B., a girl under the age of twenty-one years, to wit, of the age of eighteen years, that the said C. D., was acquainted with the parents of the said A. B., and that the said C. D., knew a lady in want of a servant, and that the said C. D. was em- ployed by a lady to hire a servant ; by means of which false pretences and representations, the said C. D. did then and there unlawfully procure the said A. B., then and there being under the age of twenty-one years as aforesaid, to have illicit carnal connection with a certain person, to the jurors afore- said unknown. Whereas, in truth and in fact, the said C. D. was not then and there acquainted with the parents of the said A. B. ; and whereas, in truth and in fact, the said C. D. did not then and there know a lady in want of a servant ; and whereas, in truth and in fact, the said C. D. was not then and there employed by any lady to hire a servant, as the said C. D. then and there well knew ; against the peace, etc., and contrary to the form of the statute, etc. ' 6 Cox, C. C. Appendix, p. Ixxviii. See St. 12 & 13 Vict. ch. 76. CHAPTER II. ABORTION. It is not an offence, at common law, to perform an operation npon a pregnant woman, with her consent, for the purpose of procuring an abortion, and thereby to effect such purpose, unless the woman be quick with chUd.^ 1. For administering- poison to procure miscarriage. — Mass. St. 1845, ch. 27. The jurors, etc., upon their oath present, that C. D. late of B. in the county of S., gentleman, on the first day of June in the year of our Lord , at B. aforesaid, in the county aforesaid, feloniously, maliciously, and without lawful justifi- cation, did administer to one E. F., the said E. F. being then and there pregnant with child, a large quantity, to wit, two ounces of a certain noxious thing, called savin,^ with intent ^ Commonwealth r. Parker, 9 Metcalf, 263 ; Commonwealth v. Bangs, 9 Mass. 387; The State v. Cooper, 2 New Jersey, 57; 1 Gabbett, Crim. Law, 519. But see contra, Mills v. The Commonwealth, 13 Pennsylvania State Kep. 631. See also Commonwealth v. Demain, Brightly, 441 ; Kegina u. Wycherley, 8 Carrington & Payne, 262, 264. In Massachusetts and in New Jersey, the offence is now made punishable by statute. ' If there be any doubt as to the drug ^ministered, it may be prudent, perhaps, to state it in different ways in several counts, and add a count stating it to be " a certain noxious thing to the jurors aforesaid unknown.'' Archbold, Crim. PI. (London ed. 1853), 518. Although, in Indiana it has been decided, that in an indictment on the statute of that State, which enacts, that " Every person who shall wilfully administer to any pregnant woman, any medicine, drug, substance, or thing whatever, or employ any instrument, etc., with intent thereby to procure the miscarriage of any 10 ABORTION. [chap. II. thereby then and there to cause and procure the miscarriage of the said E. F.^ If the woman die in consequence, pro- ceed as follows. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said E. F., afterwards, to wit, on the first day of July in the year of our Lord , at B. aforesaid, in the county aforesaid, by means of the noxious thing aforesaid, so as aforesaid, in manner and form aforesaid administered by the said C. D., and taken and swal- lowed by the said E. F., then and there died ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. 2. For using instruments to procure miscarriage. — Mass. St. 1845, ch. 27. That C. D. late of B. in the county of S., physician, on the first day of June in the year of our Lord , at B. aforesaid, in the county aforesaid, maliciously and without woman, etc.," tlie name of the medicine need not be stated, nor the medicine be described as noxious. The State v. Vawter, 7 Blackford, 592. And see Rex V. Coe, 6 Carrington & Payne, 403 ; Rex v. Phillips, 3 Campbell, 74. ' In an indictment for felony, under the New York statute of 1846, rela- tive to abortion, the intent to destroy the rhild must be alleged. And it is not sufficient to allege that the defendant administered some drug to a preg- nant woman, or that she employed some instrument for the purpose of pro- ducing a miscarriage, and that the patient was quick with child, and that the child was killed. Lohman v. The People, 2 Barbour, 216. Where one stat- ute renders it a misdemeanor to administer drugs, etc., to a pregnant female, with intent to produce a miscarriage ; and another statute declares it man- slaughter to use the same means with intent to destroy the child, in case the death of such child should be thereby produced ; an indictment, charging all the facts necessary to constitute manslaughter under the latter statute, except the intent to destroy the child, and alleging only an intent to produce mis- carriage, is fatally defective as an indictment for manslaughter, but is good as an indictment for a misdemeanor. Lohman v. The People, 1 Comstock, 379. In an indictment for an attempt to procure abortion, it was held to be sufficient to charge an intent to cause and procure the miscarriage and abor- tion of the mother, and the premature birth and destruction of the child, of which she was big and pregnant. Mills v. The Commonwealth, 13 Pennsyl- vania State Rep. 631. CHAP. II.]~ ABORTION. 11 lawful justification did use a certain instrument, the name of which insti'ument is to the jurors aforesaid unknown, which the said C. D. in his right hand then and there had and held, by then and there forcing and thrusting the instrument afore- said, into the body and womb of one E. F., the said E. F. then and there being pregnant with child, with intent thereby then and there to cause and procure the miscarriage of the said E. F. ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. 3. For circulating' an advertisement relative to procuring abortion. — Mass. St. 1847, ch. 83. That C. D. late of B. in the county of S., physician, on the first day of June in the year of our Lord , at B. aforesaid, in the county aforesaid, unlawfully and knowingly did publish, distribute, and circulate a certain advertisement, containing words and language giving and conveying notice and reference to a certain place where a medicine and infor- mation might be obtained, for the purpose of procuring the miscarriage of any woman pregnant with child, which adver- tisement, published, circulated, and distributed as aforesaid, is of the tenor followiifg, that is to say, \_here set out an exact copy of the advertisement^ ; against the peace of said Com- monwealth, and contrary to the form of the statute in such case made and provided. 4. Indictment against the principal for using an instrument to procure abortion, and against an accessory before thefact.^ The jurors, etc., upon their oath present, that Thomas Ashmall, late of B. in the county of S., gentleman, on the , first day of June in the year of our Lord , at B. afore- said, in the county aforesaid, feloniously, unlawfully, and mali- ciously, did use a certain instrument, the name of which instru- * E«gina v. Aslimall, 9 Carrington & Payne, 236. 12 ABORTION. [chap. II. ment is to the jurors aforesaid unknown, by then and there forcing, thrusting, and inserting the said instrument into the private parts of Hannah Lear, now known by the name of Hannah Evans, with intent in so doing, then and there and thereby to procure the miscarriage of the said Hannah Lear, now known by the name of Hannah Evans; against the form of the statute in such case made and provided, and against the peace, etc. And the jurors aforesaid, upon their oath aforesaid, do further present, that Thomas Josiah Tay, late of B. aforesaid, in the county aforesaid, gentleman, before the committing of the felony by the said Thomas Ashmall as aforesaid, to wit, on the, first day of June in the year of our Lord , at B. aforesaid, in the county aforesaid, feloni- ously did procure, counsel, and command the said Thomas Ashmall, the felony aforesaid, in manner and form afqresaid, to commit; against the form of the statute in such case made and provided, and against the peace, etc. CHAPTER III. ACCESSORY. In an indictment against an accessory before the fact, after describing the offence of the principal, it is sufficient to aver that the said C. D. "did feloniously and maliciously incite, move, procure, aid, counsel, hire, and command" the said A. B. tc| commit the said felony.^ In the case of an accessory after the fact, it is sufficient after stating the principal offence, to charge that the said C. D., well knowing the said A. B. to have done and committed the said felony, did afterwards "feloniously receive, comfort, harbor, and maintain the said A. B." ^ In case of felonies, created or punished by particu- lar statutes, accessories before the fact are frequently described by particular words, which ought to be used in framing indictments against them. Yet it has been held, that an indictment against one, as an , accessory before the fact to a murder, which alleged that he did " maliciously excite, move, and procure," was sufficient, where the words of the statute are " maliciously command, hire, or counsel," since the coun- selling of another is necessarily included in the exciting, mov- ing, and procuring.^ A party may be indicted as accessory to one of several principals, or to aU. And if he be indicted as accessory to all, he may be convicted on such an indict- ment as accessory to one or some of them.* ' Lord Sanchar's case, 9 Co. 114; 1 Starkie, Crim. Pi. (London ed. 1828), 140. * 1 Deacon, Crim. Law, 17. ' Hex V. Grevil, Anderson, 195. And see Foster, Crim. Law, 130 ; Com- monwealth V. Howel, 5 Grattan, 664, 672. * Lord Sanchar's case, 9 Co. 119 ; Archbold, Crim. PI. (Am. ed. 1846), 812. 9 14 ACCESSORY. [chap. III. 1. Against the principal in the second degrees- After stating the offence of the principal in the first degree, and immediately before the conclusion of the indictment, charge the principal in the second degree, as follows : — And the jurors aforesaid, upon their oath aforesaid, do further present, that E. F. late of B. in the county aforesaid, laborer, on the first day of June in the year aforesaid, with force and arms, at B. aforesaid, in the county aforesaid, was feloniously and [burglariously] present, aiding, abetting, and assisting^ the said C. D., the felony and [burglary] ^ aforesaid, in manner and form aforesaid, to do and commit ; against the peace of said Commonwealth, and contrary to the form of the statute '"In the case of a felony at common law not punisLable with death," says Archbold, Crim. PI. (London ed. 1853), 765, "and in cases of felony at com- mon law or by statute, where the principal in the first degree is expressly, and the principal in the second degree is by construction of law, punishable with death, the pleader may charge the principal in the second degree either as principal in the first degree, for proof that he was present aiding and abetting will, in such a case, maintain an indictment charging him with hav- ing actually committed the oifence ; see Mackally's ease, 5 Co. 6 7, 6 ; 1 Hale, P. C. 438 ; Eex v. Towle, Kussell & Ryan, C. C. 314 ; or, as being present aiding and abetting, as in the form above given, at his option. Kegina v. Crisham, Carrington & Marshman, 187; Kegina v. Downing, 1 Denison, C. C. 52 ; 2 Carrington & Kirwan, 382. A., B., and C. were indicted for murder ; in the first count, as principals in the first degree ; and in the sec- ond, A. was indicted as a principal in the first degree, and B. and C. as prin cipals in the second degree ; the grand jury ignored the first count as to B. and C, and found a true bill on the second count against all ; it seems that B. and C. might be convicted on the second count, though A. was acquitted. Kegina r. Phelps, Carrington & Marshman, 180." ' An inquisition for manslaughter, which charges that the principals in the second degree were feloniously present then and there abetting, aiding, and assisting, is bad, as the word " feloniously " only extends to the word " pres- ent." Kex V. Nicholas, 7 Carrington & Payne, 538. See also Regina v. Phelps, Carrington & Marshman, 180. ' The only variation between indictments against accessories to arson, robbery, rape, etc., and the precedent given in the text is, that instead of the word " burglary," the word " arson," " robbery," " rape," etc., must be inserted, as the case may require, omitting, of course, to charge that the defendant was " burglariously " present, etc. CHAP, in.] ACCESSORY. 15 in such case made and provided. In an indictment for mur- der, this is inserted immediately before the concluding clause, And so the jurors aforesaid, upon their oath aforesaid, do say, etc. ; and the concluding clause then charges both the principals in the first and second degree with the murder, as follows : — And so the jurors aforesaid, upon their oath aforesaid, do say and present, that the said C. D. and E. F., the said J. N. ia manner and form aforesaid, then and there feloniously, wil- fully, and of his malice aforethought, did kill and murder; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. 2. Against an accessory before the fact, together with the principal. After charging the principal with the offence^ and imme- diately before the conclusion of the indictment, charge the acces- sory as follows : — And the jurors aforesaid, upon their oath aforesaid, do further present, that E. F. late of B. aforesaid, in the county aforesaid, laborer, before the said felony and [burglary] was committed in manner and form aforesaid, to wit, on the first day of June in the year aforesaid, with force and arms, at B. aforesaid, in the county aforesaid, did felo- niously and maliciously incite, move, procure, aid, counsel, hire, and command, the said C. D. the said felony and [burg- lary] in manner and form aforesaid to do and commit ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. 3. Against an accessory before the fact, the principal being convicted.^ The jurors, etc., upon their oath present, that heretofore, to ' In South Carolina, it has been held, that at common law it is not neces- sary in an indictment against an accessory before the fact, in a felony, to set out the conviction or execution of the principal. The State v. Sims, 2 Bailey, 24. But see Commonwealth v. Dudley, 6 Leigh, 614. 2 Archbold, Crim. PI. (Am. ed. 1846), 815. 16 ACCESSORY. [chap, in, wit, at the general sessions of the delivery of the jail of, etc. etc., so contimiinff the caption of the indictment against the principal, it was presented upon the oaths of, etc.,^ that one J. S. late of, etc., continuing- the indictment to the end, reciting it in the past, and not in the present tense ; upon which said indictment the said J. S., at the session of the jail delivery- aforesaid, was duly convicted of the felony and [larceny] aforesaid ; as by the record thereof more fiilly and at large appears.* And the jurors aforesaid, upon their oath aforesaid, do further present, that J. N. late of B. aforesaid, in the county aforesaid, laborer, before the said felony and [larceny] was committed in form aforesaid, to wit, on the first day of May in the year aforesaid, at B. aforesaid, in the county aforesaid, did feloniously and maliciously incite, move, pro- cure, aid, counsel, hire, and command the said J. S. the said felony and [larceny] in manner and form aforesaid to do and commit ; against the peace, etc. 4. Against an accessory before the fact. — Rev. Sts. of Mass. ch. 133, § 1.2 And the jurors aforesaid, upon their oath aforesaid, do fur- ther preselit, that E. F. late of B. in the county of S., laborer, before the said felony and [murder] was committed in man- ner and form aforesaid, to wit, on the first day of May in the year of pur Lord , at B. in the county of S., was acces- sory thereto before the fact, and then and there feloniously, ' In setting out the indictment against the principal, it is not sufficient to allege, that " at the sessions of jail delivery, etc., it was presented," etc., with- out saying by whom, and on oath, etc. Regina v. Butterfield, 2 Moody & Kobinson, 622 ; 1 Cox, C. C. 39. ' It was decided in Commonwealth v. Knapp, 9 Pickering, 49G (1830), that the St. 1784, ch. 65, § 1, (from which the first section of the Rev. Sts. ch. 133, was taken,) providing that "Tfatiy person shall aid, assist, abet, counsel, hire, command, or procure any person to commit the crime of murder, he shall be considered as an accessory before the fact," refers to a person not present aiding, etc., and that the distinction between principals in the second degree and accessories was not abolished. CHAP, ni.] ACCESSORY. 17 (^\'ilfuUy, and of his malice aforethought,) did counsel, hire, and procure the said C. D. the felony and [murder] aforesaid^ in manner and form aforesaid, to do and commit ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. 5. Against an accessory before the fact, as for a substantive felony. — St. 7 Geo. 4, ch. 64, § 9.i The jurors for, etc., upon their oath present, that one C. D. late of B. in the county of S., laborer, (or, that some person or persons to the jurors aforesaid unknown,) on the first day of June in the year of our Lord, etc., stating the felony exclu- sive of the conclusion, "against the peace," etc.. And the jurors aforesaid, upon their oath aforesaid, do further present, that E. F. late of B. aforesaid, in the county aforesaid, laborer, before the said felony and [larceny] was .committed in form aforesaid, to wit, on the first day of May in the year aforesaid, at B. aforesaid, in the county aforesaid, did feloni- ously and maliciously incite, move, procure, aid, counsel, hire, and command the said C. D. {or, the said person or persons to the jurors aforesaid unknown) the said felony and [lar- ceny] in manner and form aforesaid, to do and commit; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. • 6. For soliciting a person to commit an offence!^ The jurors, etc., upon their oath present, that C. D. late of B. in the county of S., laborer, on the first day of June in .* ' Archbold, Crim. PI. (Am. ed. 1846), 816. An indictment is prop- erly framed as for a substantive felony which states in the first place, that the principal committed the felony, and then that the defendant incited, moved, etc., him to commit it ; although the principal has not been tried and does not appear to be amenable to justice. Eegina v. Wallace, 2 Moody, C. C. 200 ; Carringtou & Marshman, 200. Statutes similar to St. 7 Geo. 4, ch. 64, § 9, have been passed in several of the United States. * Archbold, Crim. PI. (Am. ed. 1846), 820. 2* 18 ACCESSOKT. ~ [chap. IH. the year of our Lord , at B. aforesaid, in the county aforesaid, falsely, wickedly, and unlawfully, did solicit and incite one J. W. a servant of one J. N., to take, embezzle, and steal a large quantity, to wit, one hundred pounds of cotton twist, of the value of five dollars each, of the goods and chattels of his master, the said J. N. ; against the peace of said Commonwealth, and contrary to the form of the stat- ute in such case made and provided. 7. Against an accessory after the fad, with the principal. And the jurors aforesaid, upon their oath aforesaid, do fur- ther present, that E. F. late of B. in the county of S., laborer, after the felony and [burglary] aforesaid was committed in manner and form aforesaid, by the said C. D., to wit, on the first day of July in the year of our Lord , at B. aforesaid, in the county aforesaid, the said C. D. did feloniously receive, harbor, and maintain; the said E. F. then and there well knowing the felony and [burglary] aforesaid to have been done and committed by the said C. D. in manner and form aforesaid; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. 8. Against an accessory after the fact, the principal being convicted. ^ , Proceed as in the precedent, No. 3, p. 15, to the asterisk, and then as follows : — And the jurors aforesaid, upon their oath aforesaid, do further present, that E. F. late of B. afore- said, in the county aforesaid, laborer, after the felony and [burglary] aforesaid was committed in manner and form aforesaid by the said C. D., to wit, on the first day of July in the year of our Lord , at B. aforesaid, in the county aforesaid, the said C. D. did feloniously receive, harbor, and ^ An indictment as for a substantive felony may be in the same tenns. Kegina v. Wallace, 2 Moody, C. C. 200 j Carrington & Marshman, 200. CHAP. in.J ACCESSORY. 19 maintain-; the said E. F. then and there well knowing the felony and [burglary] aforesaid to have been done and com- mitted by the said C. D. in manner and form aforesaid; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and pirovided. 9. Against an accessory after the fact. — Rev. Sts. of Mass. ch. 133, § 4. Draw the indictment against the principal according to the precedents, as the case may be, and then proceed as follows : — And the jurors aforesaid, upon their oath aforesaid, do further present, that E. F. late of B. aforesaid, in the county afore- said, laborer, afterwards, to wit, on the first day of July in the year of our Lord , with force and arms, at B. afore- said, in the county aforesaid, then and there well knowing the said C. D. to have done and committed the felony and [burglary] in manner and form aforesaid, the said C. D. then and there did knowingly harbor, conceal, maintain, and assist, with intent that the said C. D. should then and there avoid and escape from detection, arrest, trial, and punish- ment ; the said E. F. then and there not standing in the rela- tion of husband or wife, parent or grandparent, child or grand- child, brother or sister, by consanguinity or affinity to the said C. D. ; 1 whereby, and by force of the statute in such case made and provided, the said E. F. is deemed an accessory after the fact, \o the felony and [burglary] aforesaid. And so the jurors aforesaid, upon their oath aforesaid, do say and present, that the said E. F. at B. aforesaid, in the county aforesaid, on the said first day of July in the year aforesaid, was an accessory after the fact, in manner and form aforesaid, to the felony and [burglary] aforesaid ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. ' It is necessary to allege that the defendant did not stand in any of Jhose relations to the principal offender which are excepted from the operation of the statute in the enacting clause. The State v. Butler, 17 Yermont, 145. CHAPTEK IV. ADMINISTERINO CHLOEOFOKM, ETC., WITH INTENT TO COMMIT A FELONY, The following precedent is drawn on the St. 14 & 15 Vict. ch. 19, § 3, which enacts, " That if any person shall unlawfully apply or administer, or attempt to apply or admin- ister, to any person any chloroform, laudanum, or other stupe- fying or overpowering drug, matter, or thing, with intent thereby to enable such offender or any other person to com- mit, or with intent to assist such offender or other person in committing, any felony, every such offender shall be guilty of felony, and being convicted thereof shall be liable," etc.^ ^ " This clause,'' says Mr. Greaves, in a note to Lis edition of Lord Camp- bell's Acts, p. 39, "is intended to prevent the administration of stupefying ingredients to persons, in order to facilitate the commission of felonies. It extends to every case where any person applies or administers, or attempts to apply or administer, any chloroform, laudanum, or other stupefying or overpowering drug, matter, or thing, with intent thereby to enable such offender, or any other person to commit, or with intent to assist such offender, or other person in committing any felony. " In order to bring a person within this section, two things must exist. There must be either an attempt to administer or apply, or an actual admin- istration or application of chloroform, laudanum, or some other stupefying or overpowering ingredient, and an intent thereby to enable some person to perpetrate a felony. This clause will include all persons applying chloro- form in order to commit a robbery, or to steal any property from the person of another, and it would seem to apply to any person who administers any stupefying ingredient to a female, in order to have connection with her whilst in a state of unconsciousness. See Kegina v. Camplin, 1 Denison, C. C. 89, and the addenda, explaining the grounds of that decision." This case is also reported in 1 Carrington & Kirwan, 746 ; 1 Cox, C. C. 220. See also Eegina V. Page, 2 Cox, C. C. 133, CHAP. IV.] ADMINISTERING CHLOROFORM, ETC, 21 Although this statute is not in force in this country, still it has been deemed advisable to insert a precedent, from which an indictment under any similar statute can be easily framed. 1. For administering chloroform, vnth intent to commit a felony^ The jurors, etc., upon their oath present, that C. D. late of B. in the county of S., laborer, on the first day of June in the year of our Lord , at B. aforesaid, in the county afore- ' said, feloniously and unlawfully did apply to one E. F. a large quantity of a certain stupefying and overpowering drug, called chloroform,^ to wit, two ounces of the said stupefying and overpowering drug called chloroform, with intent thereby then and there to enable the said C. D. then and there feloni- ously and violently to steal, take, and carry away the moneys, goods, and chattels of the said B. F., from the person and against the wiU of the said B. F. ; against the peace, etc., and contrary to the form of the statute in such case made and provided. ' Lord Campbell's Acts, by Greaves, 75. ' If it be not certain that it was chloroform that was administered, add a count or counts stating it to be " a certain stupefying and overpowering drug and matter, to the jurors aforesaid unknown." Archbold, Crim. PI. (London ed. 1853), 538. CHAPTER V. ADULTKRY. By the common law, the simple act of adultery is not punishable by indictment; it is only the open lewdness or public indecency of the act which is indictable.^ But in many of the United States it is now made punishable by statute. Whether it is necessary that both the parties -be iriarried persons, is a point upon which the authorities are in conflict. The better opinion seems to be, that where one of the parties to the act of criminal intercourse is unmarried, the crime is fornication in that one, and adultery in the mar- ried party .2 * Anderson v. The Commonwealth, 6 Randolph, 627; Commonwealth u. Isaaks, 5 Randolph, 634 ; The State v. Brunson, 2 Bailey, 149. In Connec- ticut, it has been held a high misdemeanor, punishable by indictment, to solicit another to commit adultery. The State v. Avery, 7 Connecticut, 267. ' Commonwealths. Call, 21 Pickering, 509 ; The State ti. Cooper, 16 Ver- mont, 551 ; The State v. Pearce, 2 Blackford, 318 ; Commonwealth e. Laf- ferty, 6 Grattan, 672; Respubliea v. Roberts, 2 Dallas, 124 ; 1 Yeates, 6; The State v. Hinton, 6 Alabama, 864 ; Hall v. Hull, 2 Strobhart, Eq. R. 174. In New Jersey it has been decided, that even a married man does not com- mit this crime in having carnal connection with an unmarried woman. The State V. Lash, 1 Harrison, 380. In the State v. Wallace, 9 New Hampshire, 515, it was held, that this oflfence was committed whenever there is an inter- course from which a spurious issue may proceed ; and that therefore it was committed by an unmarried man, by illicit connection with a married woman. In Massachusetts, the Rev. Sts. ch. 130, § 1, enact, that " where the crime is committed between a married woman and a man who is unmarried, the man shall be deemed guilty of adultery, and be liable to the same punishment" CHAP. V.J ADULTERY. 23 1. Adultery by a married man with an unmarried woman. Rev. Sts. of Mass. ch. 130, § 1. The jurors, etc., upon their oath present, that C. D. late of B. in the county of S., laborer, on the first day of June in the year of our Lord ,i at B. in the county of S.,^ did commit the crime of adultery with one J. N.,^ by then and there having carnal knowledge of the body of the said J. N., the said C. D. being then and there a married man,* and then and there having a lawful wife alive, other than the said J. N., and the said C. D. and the said J. N. not being then and there lawfully married to each other ;^ against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. ' It is not necessary to charge the offence ■with a continuando. The State V. Glaze, 9 Alabama, 283. ° A special Terdict finding the defendant guilty of the offence, but not finding him guilty in the county where it is alleged to have been committed, cannot be supported. And such a verdict will not operate as an acquittal, but the defendant must be again put on his trial. Commonwealth v. Call, 2t Pickering, 509. ' As adultery may be committed by a married man with a single woman, (Commonwealth v. Call, 21 Pickering, 509,) it is not necessary to state the name of the woman, with any view to showing that she was a married woman. And an allegation, that the offence was committed " with a certain woman whose name to said jurors is unknown," etc., " the defendant being then and there a married man, and having a lawful wife alive, other than said woman whose name to said jurors is unknown as aforesaid," is a sufficient descrip- tion of the person with whom the offence is alleged to have been committed. Commonwealth v. Tompson, 2 Cushing, 551. * In Alabama it has been held, that the marriage of either party need not be alleged, because the word adultery implies per se, that one of the parties is a married person. The State v. Hinton, 6 Alabama, 864. ' In Moore v. The Commonwealth, 6 Metcalf, 243, the indictment alleged, that the said Moore " did commit the crime of adultery with one Mary Stuart, by then and there having carnal knowledge of the body of the said Stuart, she the said Stuart then and there being a married woman, and hav- ing a husband alive," etc. It was held that these allegations did not show with certainty, that Mary Stuart was not the wife of Moore. In Common- wealth V. Beardon, 6 Cushing, 78, the indictment alleged, that the defendant 24 ADULTERY. [CHAP. V. 2. Against both parties jointly. — Rev. Sts. of Mass. ch. 130, § l.i That C. D. late of B. in the county of S., laborer, and J. S. the wife of J. N. late of B. aforesaid, in the county aforesaid, laborer, on the first day of June in the year of our Lord , at B. aforesaid, in the county aforesaid, did commit the crime of adultery, by then and there having carnal know^ledge of the bodies of each other, the said J. S. being then and there a married woman, and then and there having a lawful hasband alive, other than the said C. D., and the said C. D. being then and there a married man, and then and there having a lawful wife alive, other than the said J. S., and the said C. D. and the said J. S. not being then and there lawfully married to each other; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. 3. Adultery by an unmarried man with a married woman. Rev. Sts. of Mass. ch. 130, § 1.2 That C. D. late of B. in the county of S., laborer, on the first day of June in the year of our Lord , at B. aforesaid, " did commit the crime of adultery with one Catherine Ann Smith, then the lawful wife of Peter J. Smith, by then and there having carnal knowledge of the body of said Catherine Ann Smith." It was held that it was sufficiently alleged that Catherine Ann Smith was not the wife of the defendant. In this case, Dewey, J., said : " The case of Moore v. The Commonwealth, 6 Metcalf, 243, does not conflict with this view of the case. In that case, there was no allegation that the female was the wife of another person, and the only alle- gation, from which such inference could be supposed to be authorized, was that setting forth the name of the female, and giving her a different name from that borne by the party indicted for the adultery." • Parties to the crime may be jointly indicted. Commonwealth v. Elwell, 2 Metcalf, 190. • ' Under this section, an unmarried man having sexual intercourse with a rnarried woman, is guilty of adultery, although he did not know that she was married, and therefore such knowledge need not be averred, nor proved at the trial. Commonwealth v. Elwell, 2 Metcalf, 190. CHAP v.] ADULTERY. 25 in the county aforesaid, did commit the crime of adultery with one E. F.,^ by then and there having carnal knowledge ' In The State v. Vittum, 9 Xew Hampshire, 519, the indictment alleged that the defendant committed adultery with one L. W., ■without any ftirther designation. It appeared that there were in that town, two individuals of that name, father and son, and that the son used the addition of "junior" to his name, and was thereby well known and distinguished from his father. It was held, that the defendant had the right to understand that the offence was charged to have been committed with the father, and evidence of adul- tery with the son was not admissible in evidence. In Peace's case, 3 Barne- wall & AJderson, 579, upon an indictment charging an assault upon Elizabeth Edwards, where it appeared that she had a mother of the same name, the court held that it was not necessary to distinguish her as "the younger; " although, it was objected, that where such an addition is not given, the pre- sumption is, that it is the parent, and not the child, that is intended. And the court said, that it was sufficient to prove that an assault was committed upon a person bearing the name of Elizabeth Edwards. In Hodgson's ease, 1 Lewin, C. C. 236, the prisoner was indicted for stealing a horse, the prop- erty of Joshua Jennings. It appeared in evidence, that the horse was the property of Joshua Jennings, the son of Joshua Jennings, the father. For the prisoner, it was objected, that the person named in the indictment must be taken to be Joshua Jennings, the elder. But Parke, J., on the authority of Rex V. Peace, overruled the objection. In a recent case in Maine, (The State V. Grant, 22 Maine, 171,) the same objection was taken as in Bex v. Peace, and overruled. In this case, which was an indictment for larceny, the property charged to have been stolen was alleged to have been " the property of one Eusebius Emerson, of Addison, in the county of Washing- ton." The evidence was, that there were, in that town, two persons, father and son, and that the property belonged to the son, who had usually written his name with the word " junior " attached to it. And it was held, that junior is no part of a name, and that the ownership, as alleged in the indictment, was sufficiently proved. In an indictment for perjury, a suit in the Eccle- siastical Court was stated to have been depending between A. B. and C. D. The proceedings of the suit, when produced, were between A. B. and C. D. the elder, it was held, that there was no variance. Kex v. Bailey, 7 Carring- ton & Payne, 264. In assumpsit, on a promissory note made by the defend- ant, payable to A. B., and indorsed by A. B. to the plaintiff, it appeared that there were two persons of the same name, father and son, and tHtere was no evidence to show to which of them the note had been given ; but it appeared that the indorsement was in the handwriting of A. B. the son. It was held, that although jjn'md /acie the presumption that A. B. the father was meant, that presumption was rebutted by the son's indorsement. "Steb- bing V. Spicer, 8 Common Bench Rep. 827. 3 26 ADULTEKY. [CHAP. V. of the body of the said E. F., the said C. D. being then and there an unmarried man,^ and the said E. F. being then and there a married woman, and then and there having a lawful husband alive, other than the said C. D., and the said C. D. and the said E. F. not being then ^nd there lawfully married to each other ; whereby, and by force of the statute in such case made and provided, the said C. D. is deemed guilty of adultery. And so the jurors aforesaid, upon their oath afore- said, do present and say, that the said C. D. on the said first day of June in the year aforesaid, at B. aforesaid, in the county aforesaid, in manner and form aforesaid, did commit the crime of adultery; against the peace of said Common- wealth, and contrary to the form of the statute in such case made and provided. ' If the offence is charged to have been committed with a married woman, not the wife of the defendant, it is not necessary to allege that the defendant was either married or unmarried. Commonwealth v. Beardon, 6 Cashing, 78. But the indictment is insufficient, if it neither charge that he was a married man, or that the female, at the time when the offence is alleged to have been committed, was a married woman. The State v. Thurstin, 35 Maine, 205.. CHAPTER VI. AEERAY. An indictment for an af&ay must allege the fighting to have been in a public place.^ An allegation that it took place in the town of C. is not sufficient.^ Where two or more are indicted, one may be acquitted, and the other or others convicted.^ In Missouri, affi-ays are not indictable. By stat- ute, they are punishable only by a summary process before a justice of the peace.* 1. Indictment for an affray. The jurors, etc., upon their oath present, that C. D. late of B. in the county of S., laborer, and E. F. late of B. aforesaid, in the county aforesaid, laborer, on the fii"st day of June in the year of our Lord , with force and arms, at B. aforesaid, in the county aforesaid, being then and there unlawfully assem- bled together and arrayed in a warlike manner, then and there in a certain public street and highway there situate, unlaw- fully and to the great terror and disturbance of divers citizens of said Commonwealth then and there being, did make an ^ The State v. Sumner, 5 Strobhart, 53 ; Sampson v. The State, 5 Yerger, 356. Fighting, if in a private place, is only an assault. Timothy v. Simp- son, 1 Exchequer Eep. 757 ; Regina v. Hunt, 1 Cox, C. C. 177. * The State v. Heflin, 8 Humphreys, 84. " Cash V. The State, 2 Overton, 198. * The State v. Ledford, 3 Missouri, 102. 28 AFFKAT. [chap. VI. af&ay by then and there fighting ^ with each other in the pub- lic street and highway aforesaid; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. ' An indictment which alleged that the defendants " did make an affray by fighting," was held to be sufficient, and to charge the fighting sufficiently certain and definite. The State v. Benthal, 5 Humphreys, 519 ; The State V. Priddy, 4 Humphreys, 429. CHAPTER VII. ARSON AND OTHER BURNING. In an indictment for arson at common law, it is necessary to lay the offence to have been done wilfully (or,' voluntarily) and maliciously, as well as feloniously.^ And though the clause of the 9 Geo. 1, ch. 22, which related to the setting fire to any house, barn, outhouse, etc., had not the words " wil- fully and maliciously," or any words equivalent to them, or either of them, yet they were considered to be necessary to an indictment under that statute, for malice is of the essence of the ofFence.2 But it seems that the allegation that the act was done " wilfully " is unnecessary, as the term " mali- ciously " sufficiently imports that the offence was committed wilfully.^ It may here be stated, that where one intending ^ 1 Gabbett, Crim. Law, 78 ; 2 East, P. C. 1033. ° Rex V. Minton, 2 East, P. C. 1021, 1033. An indictment on St. 7 & 8 Geo. 4, ch. 30, § 2, 17, which charged the defendant with having " feloniously, voluntarily, and maliciously," set fire to a barn, was holden bad, because the words of the statute are, " unlawfully and maliciously." Rex v. Turner, 1 Moody, G. C. 239; 4 Carrington & Payne, 245; 1 Lewin, C. C. 9. See also Regina v. Ryan, 2 Moody, C. C. 15; 7 Carrington & Payne, 234. ' Chapman v. The Commonwealth, 5 Wharton, 427; Rex v. Cox, 1 Leach, C. C. (4th London ed.), 71, (1770,) which was an indictment for perjury at common law. But an indictment on that part of the Black Act which made it felony " wilfully and maliciously " to shoot at any person in a dwelling- house or other place, was holden bad, because it charged the offence to have been done " unlawfully and maliciously," omitting the word " wilfully." Some of the judges thought that " maliciously " included " wilfully ; " but the greater number held, that as " wilfully " and " maliciously " were both men- tioned in the statute as descriptive of the offence, both must be stated in the indictment. Bex v. Davis, 1 Leach, C. C. (4th London ed.), 493, (1788). See Eegina v. Bent, 1 Denison, C. C. 157 ; 2 Carrington & Barwan, 179. 3* 30 ARSON AKD OTHER BURNING. [CHAP. Til. only to burn the house of A., thereby bums the house of B., the indictment may directly charge him with the wilful and malicious burning of B.'s house.^ It is also necessary, at common law, to state an actual burning; 2 and though the St. 9 Geo. 1, ch. 22, used the words, " set fire to," it was common, in prosecutions under that statute, to state both, though in effect meaning the same thing.^ But in a prosecution under this statute for setting fire to a haystack, it was moved to arrest the judgment on the ground that it was not averred in the indictment, that by rea- son of setting on fire the stack of hay was burnt and con- sumed. And the point being reserved, the judges were of opinion that the conviction was right ; that it was not neces- sary the stack should be burned, the words of the act being " set fire to." * It is sufficient, at common law, to charge in the indictment the burning of a " house," without describing it to be a dwell- ing-house ; ^ and this is clearly so now, in indictments under 1 1 Gabbett, Crim. Law, 78 ; 2 East, P. C. 1034 ; 3 Greenl. Ev. § 56. ' Whether a building has been so affected by fire as to constitute a burn- ing within the legal meaning of the term, is a question of fact, to be deter- mined by the jury upon the evidence. Commonwealth v. Betton, 5 Gushing, 427. The least burning of the house is sufficient to constitute the crime. Commonwealth v. Van Shaack, 16 Mass. 105 ; The State v. Sandy, 3 Iredell, 570; 1 Gabbett, Crim. Law, 75. . ' 2 Starkie, Crim. PL (London ed. 1828), 442, note (m) ; 2 East, P. C. 1033 ; 1 Gabbett, Crim. Law, 79. In an indictment under the statute, 1 Rev. Code of Virginia, ch. 160, § 4, it is not sufficient to use the words " set fire to." But the word " burn" must be used, that being the word employed in the statute to define the offence. HoweU v. The Commonwealth, 5 Grat- tan, 664. ■• Kex V. Salmon, Eussell & Ryan, C. C. 26. And see Howell v. The Com- monwealth, 5 Grattan, 664. ' Commonwealth v. Posey, 4 Call, 109 ; Regina i-. Connor, 2 Cox, C. C. 65, 66 ; 1 Gabbett, Crim. Law, 79 ; 2 East, P. C. 1033. There is a distinc- tion in this respect between an indictment for burglary and arson at common law; for domum mansionale is a necessary description in the former; but domum, (viz. a malt-house, barn, or the hke,) is sufficient in the latter. 1 Gabbett, Crim. Law, 79, note (b). And see Wilmot's Digest of the Law of CHAP. VII.] ARSON AND OTHER BURNING. 31 statutes which use the term house, and not mansion-house or dwelling-house.^ Where outhouses are the subject of the indictment, it appears to be sufficient to describe them as out- houses generally, without stating of what particular denomi- nation they are.2 In designating the person against whom the offence is laid to have been committed, great care must be taken, as any variance in this respect will be fatal.^ Where there is a doubt Burglary, 196. Where an indictment charges that the defendant set fire to a house " used as a dwelling-house," being the property of A. B., this is a suf- ficient allegation that he set fire to a dwelling-house. McLane v. The State, 4 Georgia, 335, 338. ' To constitute the ofience of arson at common law, the house must be a dwelling-house ; and a common jail occupied by none but prisoners is not a dwelling-house for this purpose. Regina v. Connor, 2 Cox, C. C. 65. In the case of Rex u. Donnevan, 2 W- Blackstone, 682; 1 Leach, C. C. (4th Lon- don ed.), 69 ; 2 East, P. C. 1020, it was held, that a jail was a house within the meaning of the words "any house," in the St. 9 Geo. 1, ch. 22; but there the jailor's house was part of the jail, and the court gave that as a rea^ son for their decision.. And see the People v. Cotterall, 18 Johnson, 115 ; Stevens v. The Commonwealth, 4 Leigh, 683. The statute of Massachusetts refers to the dwelling-house strictly, and no other building can be the subject of arson. Commonwealth v. Buzzell, 16 Pickering, 153. • The burning of a barn, though no part of the mansion-house, if it had corn or hay in it, was felony and arson at common law. Sampson v. The Commonwealth, 5 Watts & Sergeant, 385 ; 1 Gabbett, Crim. Law, 75 ; 3 Greenl. Ev. § 52. ' Commonwealth v. Wade, 17 Pickering, 395 ; The State v. Lyon, 12 Con- necticut, 487; Rex u. Glandfield, 2 East, P. C. 1034; Rex v. Rickman,'2 East, P. C. 1034; Rex v. Ball, 1 Moody, C. C. 30; 1. Gabbett, Crim. Law, 79, 80; 3 Greenl. Ev. § 54. But in Massachusetts, it is provided by statute, that in the prosecution of any offence, committed upon, or in relation to, or in any way affecting any real estate, it shall be sufficient, and shall not be deemed a variance, if it be proved on the trial, that at the time when the offence was committed, either the actual or constructive posses- sion, or the general or special property in the whole, or in any part of such real estate, was in the person or community, alleged in the indictment or other accusation, to be the owner thereof. Rev. Sts. eh. 133, § 11. Thus, where an indictment alleged the ownership of a building to be in one W., and the proof was, that said W. was joint lessee with another person, it was held, that the statute entirely obviated the objection of a variance. Common- wealth V. Harney, 10 Metcalf, 422. 32 ARSON AND OTHER BURNING. [CHAP. VII. in which of several persons the property vests, it should be differently described in different counts, in order to obviate any objection on the score of variance. The burning of property, of various descriptions, is made punishable by statutes in many of the United States. In Illinois and in Indiana, it is necessary to state the value of the property. Because in those States the extent of the punishment depends upon the value of the property injured or consumed.^ > 1. Arson, at common law? The jurors, etc., upon their oath present, that C. D. late of B. in the county of S., laborer, on the first day of June in the year of our Lord ^ with force and arms, at B. afore- said, in the county aforesaid, feloniously, wilfully, and mali- ciously did set fire to and burn a certain dwelling-house of one J. N., there situate ; against the peace, etc. 2. For burnings a dwelling-house in the night time. — Mass. St. 1852, ch. 259, § 3. The jurors for the Commonwealth of Massachusetts, upon their oath present, that C. D. late of B. in the county of S., laborer, on the first day of June in the year of our Lord , in the night time of said day, with force and arms, at B. aforesaid, in the county aforesaid, the dwelling-house of otie A. B. there situate, feloniously, wilfully, and maliciously, did burn and consume ; against the peace of said Common- wealth, and contrary to the form of the statute in such case made and provided. ' Ritchie o. The State, 7 Blackford, 168; Clark v. The People, 1 Scam- mon, 117. ' Matthews, Crim. Law, 436. ' If the offence Is charged to have been done in the night time, this allega- tion needs not be proved, if the indictment is at common law ; for it is not material, unless made so by statute. Rex v. Minton, 2 East, P. C. 1021. And see Commonwealth «;. Curran, 7 Grattan, 619, and the dissenting opin- ion of Field, X CHAP. Vir.] ARSON AND OTHER BURNING. 33 3. For setting fire to a building, whereby a dwelling-house was burnt in the night time. — Mass. St. 1852, ch. 259, § 3. That C. D. late of B. in the county of S., laborer, on the first day of June in the year of our Lord , in the night time of said day, with force and arms, at B. aforesaid, in the county aforesaid, a certain building, to wit, a barn, of one E. F.^ there situate, feloniously, wilfoUy, and maliciously did set fire to, and by the kindling of said fire, and by the burn- ing of said building, the dwelling-house of the said E. F. there situate, was then and there in the night time of said day, feloniously, wilfully, and maliciously burnt and con- sumed ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. 4. For burning a dwelling-house in the daytime. — Rev. Bts. of Mass. eh. 126, § 2? That C. D. late of B. in the county of S., laborer, on the first day of June in the year of our Lord , in the day- time of said day, with force and arms, at B. aforesaid, in the county aforesaid, the dwelling-house of one B. F. there situ- ate, feloniously, wilfully, and maliciously did burn and con- sume; against the peace of said Commonwealth, and con- ^ In the case of Commonwealth v. Wade, 17 Pickering, 395, (1835,) which was an indictment under St. 1804, ch. 131, it was queried whether it was necessary to allege who was the owner or occupant of such building, or whether it was the building of another. But if the allegation is mada, being descriptive of the offence, it must be strictly proved. Two indictments charging the defendant with setting fire to a bam, whereby a dwelling-house was burnt in the night, one alleging it to be the barn of A. and B., the other alleging it to be the barn of A. and C, were held not to be for the same offence. Commonwealth v. Wade, 1 7 Pickering, 395. ' If the fire was set to a building adjoining the dwelling-house, the allega- tions in indictments upon this section will be conformable to the facts in the case ; and set forth as in the preceding precedent. 34 ABSON AND OTHER BURNING. [CHAP. VH. trary to the form of the statute in such case made and provided. 5. For setting fire to a building adjoining a dwelling-house in the daytime, whereby a dwelling-house was burnt in the daytime. — E-ev. Sts. of Mass. ch. 126, § 2. That C. D. late of B. in the county of S., laborer, on the first day of June in the year of our Lord , in the day- time of said day, with force and arms, at B. aforesaid, in the county aforesaid, a certain building, to wit, a wood-house, of one A. B. there situate, and adjoining to the dwelling-house of the said A. B. there situate, feloniously, wilfully, and maliciously did set fire to ; and by the kindling of said fire and the burning of said building, the said dweUing-house of the said A. B. was then and there, in the daytime, feloniously, wilfully, and maliciously burnt and consumed; against the peace of said Commonwealth, and contrary. to the form of the statute in such case made and provided. 6. For burning a stable within the curtilage of a dwelling- house. — Rev. Sts. of Mass. ch. 126, § 3.^ That C. D. late of B. in 'the county of S., laborer, on the first day of June in the year of our Lord , in the night time of said day, with force and arms, at B. aforesaid, in the county aforesaid, feloniously, wilfully, and maliciously did set fire to a certain stable of one A. B. there situate, and then and there being within the curtilage of the dwelling-house of the said A. B. there situate, and by the kindling of such fire, the aforesaid stable there situate and then and there being within the curtilage of said dweUing-house as aforesaid, was then and there, in the night time, wilfully and maliciously burnt and consumed; against the peace of said Common- ' This form may be adopted for the maliciotis burning, in the night time, of any other building mentioned in the latter part of the third section of the statute, describing the building in the identical words of the statute. CHAP, til] ARSOK and OTHER BURNING. 35 wealth, and contrary to the form of the statute in such case made and provided. 7. For burning a city hall in the night time. — Rev. Sts. of Mass. ch. 126, § 3. That C. D. late of W. in the county of W., yeoman, on the first day of June in the year of our Lord — , in the night time of said day, with force and arms, at W. in the county of W., the city hall of the city of "W., in the county of W. afore- said, there situate and erected for pubKc use, to wit, the transaction of the municipal business of said city of "W., then and there, in the night time of said day, feloniously, wilfully, and maliciously did burn and consume ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. 8. For burning a meeting-house in the daytime. — Rev. Sts. of Mass. ch. 126, § 4. That C. D. late of F. in the county pf M., laborer, on the first day of June in the year of our Lord , in the day- time of said day, with force and arms, at F. aforesaid, in the county aforesaid, a certain meeting-house there situate, of the property of the First Baptist Society in Framingham, in said county ,1 and erected for public use, to wit, for the public wor- ship of God,^ then and there, in the daytime, feloniously, wilfully, and maliciously did burn and consume ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. • ' In Vermoirt, it lias been held, that in an indictment for burning a public building, it is not necessary to allege who is the owner or occupant, and any such allegation, if made, is immaterial. The State v. Koe, 12 Vermont, 93. See also Stevens v. The Commonwealth, 4 Leigh, 683. ' If any other building erected for public use, as town-hojises, court-houses^ academies, etc., the public use for which it is designed must be set forth. 36 ARSON AND OTHER BURNING. [CHAP. VH. 9. For burning a building erected for a dwelling-house, and not completed or inhabited. — Rev. Sts. of Mass. ch. 126, § 5.^ That J. S. late of Bgremont in the county of Berkshire, laborer, on the fifth day of October in the year of our Lord , in the night time of the same day, with force and arms, at Egremont, in the county of Berkshire, a building of one Philo Upson of said Egremont, there situate, erected by the said Philo Upson, for a dwelling-house, and not completed or inhabited,^ wilfully and maliciously did set fire to, and the same building, so erected for a dwelling-house, then and there, by the setting and kindling of such fire, did wilfully and maliciously burn and consume ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. 10. For burnhig a vessel lying within the body of the county. Rev. Sts. of Mass. ch. 125, § 5. That C. D. late of B. in the county of S., laborer, on the first day of June in the year of our Lord , in the night time of said day, with force and arms, at B. aforesaid, in the county aforesaid, a certain vessel called the Rattler, the prop- erty of one A. B. and of E. F., G. H., etc., then and there lying and being at B., within the body of the said coujjty of S., feloniously, wilfully, and maliciously did burn and con- sume ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. ' It is not necessary to aver, in an indictment on this section, for burning a building, that the building alleged to have been burnt, was " other than is mentioned" in the third section. And a conviction or acquittal upon an indictment on this section, ivithout this allegation, is a bar to a second indict- ment on the third section for the same burning. Commonwealth v. Sqnire, 1 Metcalf, 258. ' This allegation sufficiently and properly describes the offence. Com- monwealth V. Squire, 1 Metcalf, 258. CHAP. VII.] ARSON AND OTHER BURNING. 37 11. For burning a dwelling-house with intent to injure an insurance company. — Rev. Sts. of Mass. ch. 126, § 8. That C. D. late of B. in the county of S., laborer, on the first day of Junt in the year of our Lord , with force and arms, at B. in the county of S., feloniously, wilfully, and maliciously did burn and consume, a certain dwelling-house there situate, of the property of one J. N., which dwelling- house aforesaid was then, to wit, at the time of committing the felony aforesaid, insured against loss and damage by fire by the Massachusetts Mutual Fire Insurance Company ,i the same then and there being an insurance company legally established, with intent thereby then and there to injure said insurance company; against the peace of said Common- wealth, and contrary to the form of the statute in such case made and provided. 12. For setting fire to stacks of hay. — Rev. Sts. of Mass. ch. 126, § 6. That C. D. late of B. in the county of S., laborer, on the first day of June in the year of our Lord , at B. afore- said, in the county aforesaid, feloniously,^ wUfully, and mali- ciously burn and consume a certain stack of hay of the property of one J. N., then and there being ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. ' The corporate name must be truly and correctly stated. ' The offence of burning stacks of hay, as provided against by Mass. St. 1804, § 3, 4, wag not a felony. Commonwealth v. Macomber, 3 Mass. 254. But by St. 1852, ch. 37, it now is. In Maryland, the offence is not a felony, either by common law or by the acts of 1809 and 1845. Black v. The State, 2 Maryland, 376. 4 CHAPTER VIII. ASSAULT. An indictment for a common assault alleges that the defendant, at a certain time and place, " with force and arms, in and upon one C. D., did make an assault, and the said C. D. did then and there beat, bruise, wound, and ill treat, and other wrongs to the said C. D. then and there did; against the peace," etc. K there are circumstances of aggra- vation, not amounting to a distinct offence, they may be alleged before the alia enormia. 1. For an assault, not accompanied with a battery?- The jurors, etc., upon their oath present, that C. D. late of B. in the county of S., laborer, on the first day of June in the year of our Lord , with force and arms, at B. afore- said, in the county aforesaid, in and upon one A. B.^ in the peace of said Commonwealth then and there being,^ did make an assault, and other wrongs to the said A. B. then and * The causing a deleterious drug to be taken by another was, in one case, held to be an assault. Eegina v. Button, 8 Carrington & Paj-ne, 660, (1838). But that decision is now overruled. See Eegina v. Hanson, 2 Carrington & Kirwan, 912; 4 Cox, C. C. 138, (1849); Kegina v. Dilworth, 2 Moody & Kobinson, 531, (1843) ; Kegina v. Walkden, 1 Cox, C. C. 913, (1845). ' In a complaint, it is a sufficient description of the party injured, to allege that the offence was committed "In and upon the body of Mary-K., ■wife of the complainant." Commonwealth f. Gray, 2 Gushing, 535. ' This allegation is unnecessary. Commonwealth v. Murphy, 6 The Monthly Law Reporter, n. s. 460 ; The State v. Elliott, 7 Blackford, 280. CHAP. VIII.] ASSAULT. 39 there did and committed ; against the peace of said Com- monwealth, and contrary to the form of the statute in such case made and provided. 2. For a common assault and battery. That C. D. late of B. in the county of S., laborer, on the first day of June in the year of ■ our Lord , with force and arms, at B. aforesaid, in the county aforesaid, in and upon one A. B. did make an assault, and the said A. B.^ then and there 2 did beat, bruise, wound, and ill treat, and other wrongs to the said A. B. then and there did; against the peace, etc. 3. For an assault and false imprisonment? The jurors, etc., upon their oath present, that C. D. late of B. in the county of S., laborer, on the first day of June in the year of our Lord , in and upon one J. N. did make an ■ assault, and the said J. N. did then and there beat, wound, and ill treat, and the said J. N. then and there unlawfully and injuriously, and against the will of ^he said J. N., and also against the laws of this Commonwealth, and without 1 ■ ' Where the indictment alleged that the defendant on Henry B. did make an assault, and the said William B. did beat, etc., it was held sufficient on motion in arrest of judgment. Kegina u. Crespin, 11 Queen's Bench Kep. 913. See Rex v. Morris, 1 Leach, C. C. (4th London ed.), 109; Common- wealth V. Hunt, 4 Pickering, 202. ' In indictments for assaults, there need not be either a repetition of the time, or a reference to it by the word adlunc, as the time first laid wiU be connected with all the subsequent facts. But in indictments for felony It is otherwise ; and especially where the crime consists of a combination of facts ; as a murder which consists of the assault and stroke ; and in robbery from the person, and other cases. Purcell, Crim. PI. 77; 2 Hale, P. C. 178; 1 Starkie, Crim. PI. (London ed. 1828,) 58, 59. And see Baude's case, Cro. Jac. 41; Stout v. The Commonwealth, 11 Sergeant & Rawie, 177, 178. However, in practice, time and place are added to every material fact, as well in indictments for misdemeanors, as in indictments for felony. ' Archbold, Crim. PI. (London ed. 1853), 553. 40 ASSAULT. [chap. VIH. any legal warrant, authority, or reasonable or justifiable cause whatsoever, did imprison, and detain so imprisoned for a long space of time, to wit, for the space of ten hours then next fol- lowing,* and other wrongs to the said J. N. then and there did ; to the great damage of the said J. N., and against the peace of said Commonwealth. If any money were extorted from the prosecutor for setting him at liberty^ add an averment of it immediately after the asterisk, thus : — and until the said J. N. had paid the said C. D. the sum of one hundred dollars of the moneys of the said J. N., for his enlargement; and other wrongs, etc., as above. Add a count for a common assault. 4. For throwing corrosive fluid, with intent, etc?- The jurors, etc., upon their oath present, that C. D. late of B. in the county of S., laborer, on the first day of June in the year of our Lord , with force and arms, at B. afore- said, in the county aforesaid, in and upon one A. B. did make an assault, and then and there unlawfully and mali- ciously did cast and throw upon the said A. B. a certain cor- rosive fluid, to wit, one pint of oil of vitriol, with intent in so doing then and there and thereby the said A. B. to burn, and the said A. B. thereby then and there did grievously burn ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. 5. For an assault upon a woman pregnant with child. The jurors, etc., upon their oath present, that C. D. late of B. in the county of S., laborer, on the first day of June in the year of our Lord , with force and arms, at B. in the 'In Archbold's Criminal Pleading, (London ed. 1853,) 537, a precedent similar to this ia given, drawn on St. 1 Vict. ch. 85, § 5, but it is equally good at common law. For a precedent on the same statute for an assault by throwing boiling water, see Regina w. Crawford, 1 Denison, C. C. 100; 2 Carrington & Kirwan, 129. CHAP. VIII.] ASSAULT. 41 county of S., in and upon A. B. the wife of one E. F., the said A. B. being then and there pregnant and quick with child, did make an assault, and the said A. B. did then and there beat, wound, and ill treat, so that her life was then and there and thereby greatly endangered, by reason whereof the said A. B. afterwards, to wit, on the first day of July in the year of our Lord , at B. aforesaid, in the county forth the said child dead, and other wrongs to the said A. B. did bring aforesaid, then and there did ; against the peace of said Commonwealth. 6. For an indecent assault?- The jurors, etc., upon their oath present, that C. D. late of B. in the county of S., laborer, on the fii-st day of June in the year of our Lord , at B. aforesaid, in the county afore- said, unlawfully and indecently did make an assault in and upon one A. B., and did then and there unlawfully, inde- cently, and against the will of the said A. B. pull up the clothes of the said A. B., and did then and there unlawfully, indecently, and against the will of the said A. B., put and place the hands of the said C. D. upon and against the private parts of the said A. B., stating the indecent acts which will be proved by the evidence, and other wrongs to the said A. B. then and there did ; against the peace, etc., and contrary to the form of the statute in such case made and provided. 7. For an indecent assault with intent to have an improper connection.^ The jurors, etc., upon their oath present, that C. D. late of B. in the county of S., physician, on the first day of June ^ Lord Campbell's Acts, by Greaves, p. 87. ^ 6 Cox, C. C, Appendix, p. xliii. See Eegina v. Stanton, 1 Carrington & Kirwan, 415, and the distinction pointed out in that case by Mr. Justice Coleridge, between an assault with intent to commit a rape, and an assault ■with intent to have an improper connection. . And see Begina v. Saunders, 4* 42 • ASSAULT. [chap. vm. in the year of our Lord , at B. in the county of S., did unlawfully and indecently assault one A. B., and did then and there unlawfully and indecently, and against the will of the said A. B., put and place the private parts of the said C. D. against the private parts of the said A. B., and did then and there otherwise ill treat and ill use her; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. 8. For an indecent assault by other means?- The jurors, etc., upon their oath present, that C. D. late of B. in the county of S., laborer, on the first day of June in the year of our Lord , at B. in the county of S., did unlaw- fully and indecently assault one A. B., and did then and there unlawfully and indecently, and against* the wUl of the said C. D., pull and strip the clothes of the said C. D., from and off the body of the said C. D., and did then and there otherwise ill treat and ill use her; against the peace, etc., and contrary to the form of the statute in such case made and provided. 9. For a felonious assault, with intent to maim. — Rev. Sts. of Mass. ch. 125, § 11.2 That C. D. late of B. in the county aforesaid, laborer, on 8 Camngton & Payne, 265 j Regina v. Williams, 8 Carrington & Payne, 286. The act being done fraurlulently will support the ayerment that it was against the will of the prosecutrix. This form seems applicable where actual connection has taken place under circumstances involving any leoal assault, but no higher offence. See Regina v. Case, 1 Denison, C. C. 580 ; 4 Cox, C. C. 220 ; 1 Eng. Law and Eq. R. 544 ; 1 Temple & Mew, C. C. 318. ' 6 Cox, C. C, Appendix, p. xliii. " This indictment is framed with refer- ence to the ease of Rex v. Rosinski, 1 Moody, C. C. 19; 1 Lewin, C. C. 11, where it was held, that a medical man making a female patient strip naked under the pretence that he could not otherwise judge of her illness, is an assault, if he himself agisted to take off the clothes." " On this indictment the defendant may be con-ricted of the assault, and acquitted of the intent. McBride v. The State, 2 English, (Arkansas,) 374. CHAP. VIII.] . ASSAULT. 43 the first day of June in the year of our Lord -^ , with force and arms, at B. aforesaid, in the county aforesaid, the said C. D. being then and there armed with a certain danger- ous weapon,! ^o wit, a knife, in and upon one A. B. feloniously did make an assault, with the malicious intent the said A. B. then and there to maim and disfigure, by then and there feloniously and maliciously cutting off the left ear of the said A. B. ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. 10. For a felonious assault with intent to murder. — Rev. Sts. of Mass. ch. 125, § 11.^ That C. D. late of B. in the county of S., laborer, with force and arras, at B. aforesaid, in the county aforesaid, in and upon one J. N. wdth a certain dangerous weapon,^ to Avit, with a knife, with which the said C. D. was then and .there armed, feloniously,* wilfully, and of his malice aforethought ^ When the assault is alleged to have been committed with a " deadly weapon," in the language of the statute, it is a sufficient description of the instrument used. The State v. Seamons, 1 Iowa, 418. And when the assault is charged to have been made with an axe, it will be inferred that it was a deadly weapon without such allegation. Dollarhide v. The United States, 1 Morris, 283. ' On this count the defendant may be convicted of the assault only, although there is no count charging the minor offence. The State v. Coy, 2 Aikens, 181 ; The State v. Kennedy, 7 Blackford, 233 ; Gardenhier v. The State, 6 Texas, 348. In Connecticut, under St. 1830, the jury may find a v(^•dict of " guilty of an assault, with intent to kill, but not with malice aftre- thought." The words, " with actual violence," in that statute, are not a tech- nical phrase, necessary to be charged ; an averment, that the defendant, with a knife, stabbed, cut, etc., is equivalent to the words actual violence. The State v. Nichols, 8 Connecticut, 496. ' It is not necessary to state the instrument or means made use of by the assailant. The State v. Dent, 3 Gill & Johnson, 8. But see contra, Beasley V. The State, 18 Alabama, 535 ; Trexler v. The State, 19 Alabama, 21. * In Massachusetts, in an early case, it was held, that an assault with intent to commit murder, is not a felony by common law, or by St. 1804, ch. 123, although that statute declares that the defendant shall " be deemed a feloni- 44 * ASSATJLT. [chap. vni. did make an assault, with intent the said J. N.^ then and there, with the knife aforesaid, feloniously, wilfully,^ and of his malice aforethought,^ to kill and murder;* whereby, and by force of the statute in such case made and provided, the said J. N. is deemed a felonious assaulter. * And so the jurors afore- said, upon their oath aforesaid, do say and present, that the said C. D., with force and arms, at B. aforesaid, in the county aforesaid, on the said first day of June in the year aforesaid, feloniously assaulted the said J. N. in manner and form aforesaid;*^ against the peace of s^id Commonwealth, and ous assaulter." Commonwealth v. Barlow, 4 Mass. (Rand's ed.), *439, (1808). But by St. 1852, ch. 37, it is now a felony ; and where the offence amounts to felony, the indictment should aver that the assault was feloniously made, and will be defective if the averment be omitted. 1 Starkie, Crim. PI. (Lon- don ed. 1828), 91 ; Hex v. Pelfryman, 2 Leach, C. C. (4th London ed.), 563 ; Williams v. The State, 8 Humphreys, 585. And see Commonwealth v. Chapman, 7 The Monthly Law Reporter, sr. 8. 155. But if the aver- ment is improperly made, it may be rejected as surplusage, and the defend- ant be punished for the misdemeanor. Commonwealth v. Squire, 1 Metcalf, 258. ' It must be alleged that the assault was made on a certain person, with intent to kill that person ; an allegation of an intent to kill generally, is insufficient. Jones v. The State, 11 Smedes & Marshall, 315. ' Where the indictment charged that the defendant upon one A. B., " feloniously, unlawfully, and of his malice aforethought, with, etc., did make an assault, with intent him the said A. B. feloniously, unlawfully, and of his malice aforethought, to kill and murder," it was held, that these words suffi- ciently charged that the act was done wilfully, although the word " wilfully" was not used. McCoy v. The State, 3 English, (Arkansas,) 551. It is not necessary that the assault should be charged to have been made unlawfully. The State v. Williams, 3 Foster, (N. H.) 321. ' It is necessary to charge that the act was done feloniously, and with mal- ice aforethought. It is not sufficient that this allegation is made in that part of the indictment which charges the assault. The State v. HowcU, Georgia Decisions, 158. * The particular felony intended to be committed must be alleged. The State V. Hailstock, 2 Blackford, 257. ' The allegation between the asterisks, " And so the jurors aforesaid," etc., is surplusage, and may be rejected. See Ryalls v. Regina, 11 Queen's Bench Rep. 781; 3 Cox, C. C. 36; Rice u. The Commonwealth, 12 Met- calf, 246, 248. CHAP. VIII.] ASSAULT. 45 contrary to the form of the statute in such case made and provided. 11. For a felonious assault, with intent to commit a rape. Rev. Sts. of Mass. ch. 125, § 19.i That C. D. late of B. in the county of S., laborer, on the first day of June in the year of our Lord , with force and arms, at B. aforesaid, in the county aforesaid, in and upon one J. N. 'feloniously ^ did make an assault, with intent the said J. N. then and there feloniously to ravish and car- nally know, by force and against her will ; ^ against the peace, etc., and contrary, etc. 12. For a felonious assault, with intent to abuse a child under the age of ten years. That C. D. late of B. in the county of S., laborer, on the first day of June in the year of our Lord , with force and arms, at B. aforesaid, in the county aforesaid, in and upon one A. B., the said A. B. then and there being a female child under the age of ten years, to wit, of the age of eight years, feloniously did make an assault, with intent the said A. B. ' Where the jury returned a verdict that the defendant iras " not guilty of an assault with an attempt to commit a rape in manner and form," etc., but that he was " guilty of an assault upon, and improper and unlawful inter- course with the said J. N., at the time and place alleged," it was held, that this was not a special verdict, but that the defendant might be sentenced for a simple assault. Commonwealth v. Fischblatt, 4 Metcalf, 354. ' It is necessary to charge that the assault was felonious. Williams v. The State, 8 Humphreys, 585. In Pennsylvania, the offence being a misde- meanor only, the omission of the word " feloniously " does not vitiate the . indictment.- Stout v. The Commonwealth, 11 Sergeant & Rawle, 177. ' The words did " assault," etc., " with intent," etc., " feloniously to ravish and carnally know, forcibly and against her will," etc., are necessary. And an indictment charging that the defendant " did feloniously attempt to com- mit a rape on one A. B.," etc., without the other technical words, is insuffi- cient. SuUivant v. The State, 3 English, (Arkansas,) 400. 46 ASSAULT. [chap. VIII. then and there feloniously to unlawfully and carnally know and abuse ;^ against the peace, etc., and contrary to the form, etc. 13. For a felonious assault upon a boy, with intent to commit the crime against nature? That C. D. late of B. in the county of S., laborer, on the first day of June in the year of our Lord , with force and arms, at B. aforesaid, in the county aforesaid, in and upon one J. N., the said J. N. being then and there a male child of the age of eight years, feloniously did make an assault, * with intent then and there feloniously, and against the order of nature, to commit the abominable and detestable crime against nature,'with the said J. N., by then and there having carnal knowledge of the body of the said J. N. ; ^ against the peace, etc., and contrary to the form, etc. 14. For a felonious assault, with intent to rob, being armed. Rev. Sts. of Mass. ch. 125, § 14. That C. D. late of B. in the county of S., laborer, on the first day of June in the year of our Lord , with force and arms, at B. aforesaid, in the county aforesaid, the said C. D. being then and there armed with a certain dangerous weapon,'* * An indictment charging an assault upon a child under ten years of age, " with intent feloniously to ravish, and feloniously to carnally know," etc., is good. The words " to ravish " may be rejected as surplusage. McComas v. The State, 11 Missouri, 116. ' This crime is punishable in Maryland by St. 1793, ch. 67. Davis v. The State, 3 Harris & Johnson, 154. ' From the asterisk the count may he varied as JoUows: — with intent that detestable and abominable crime, not to be named among Christians, called sodomy, with the said J. N. then and there feloniously, wickedly, diabolically, and against the order of nature to do and commit. Matthews, Crim. Law, 423. * By omitting this allegation, this count will be sufficient under the Rev. Sts. ch. 125, § 16, for an assault with intent to rob, not being armed. See CHAP. VIII.] ■ ASSAULT. 47 to wit, an axe, in and upon one J. N. feloniously, and with force and violence, did make an assault, with intent the moneys, goods, and chattels of the said J. N. from the person and against the wiU of the said J. N. then and there feloni- ously, and by force and violence, and by assault and putting in fear, to rob, steal, take, and carry away ; against the peace, etc., and contrary to the form, etc. 15. For assaulting and obstructing an officer in the discharge of Ms duties.^ The jurors, etc., upon their oath present, that on the first day of June in the year of our Lord , at B. in the county of S., J. S. then and there being one of the constables of B. aforesaid, in the county aforesaid,'^ legally authorized and duly qualified to perform and discharge the duties of said office. Lamed v. The Commonwealtli, 12 Metcalf, 240; Commonwealth v. Squire, 1 Metcalf, 258. For a precedent under the statute of Dlinois, see Conolly V. The State, 3 Scaminon, 477. ' For another precedent for this offence, see The State v. Hooker, 1 7 Ver- mont, 658. The indictment must show what the process is, and that it is legal, and in the hands of a proper officer ; but it is not necessary to set it out in haec verba. Cantrill v. The People, 3 Gilman, 356 ; McQuoid v. The People, 3 Gilman, 76 ; The State «.■ Hailey, 2 Strobhart, 73. And see The State ('. Downer, 8 Vermont, 424. But if the indictment does not techni- cally charge an assault on an officer while in the discharge of the duties of his office, and obstructing and hindering him therein, this is not a ground for arresting the judgment, but only for sentencing the defendant for a simple assault. Commonwealth v. Kirby, 2 Cushing, 577; The State v. Hailey, 2 Strobhart, 73. ^ This is a sufficient allegation that he was a constable. 2 Starkie, Crim. PI. (London ed. 1828), 407, note (n). And see ante, p. 3, note 2. An indictment, which alleged, in the first count, that an assault was made on one Smith, "then and there being sheriff of the county of Addison," and in the second count charged that the defendant " hindered and impeded a civil officer, under the authority of this State, to wit, Adnah Smith, sheriff of the county of Addison aforesaid," and in both counts alleged that Smith was in the execution of his said office, was held to charge with sufficient certainty, in both counts, that Smith was sheriff. The State v. Hooker, 17 Vermont, 658. 48 ASSAULT. ' [chap, VIH. brought one J. N. before A. C. esquire, then and yet being one of the justices of the peace within and for said county of M. legally authorized and duly qualified to perform and dis- charge the duties of said office ; and the said J. N. ^yas then and there charged before the said A. C. by one E. F. upon the oath of the said E. F. that the said J. N. had then lately before, by force and against her will, feloniously ravished and carnally known the said E. F., and the said J. N. was then and there examined before the said A. C. the justice afore- said, touching the said offence so to him charged as aforesaid ; upon which the said A. C. the justice aforesaid, did then and there make a certain warrant under his hand and seal, in due form of law, bearing date the said first day of June in the year aforesaid, directed to the keeper, or his deputy, of the Commonwealth's jail, situate at B. aforesaid, in the county aforesaid, commanding the said keeper, or his deputy, that he should receive into his custody the said J. N. brought before the said A. C. and' charged upon the oath of the said E. F., with the premises above specified ; and the said justice, by the said warrant, did command the said keeper, or his deputy, of the said jail, to safely keep the said J. N. there until he, by due course of law, should be discharged ; which said warrant afterwards, to wit, on the day and year aforesaid, at B. afore- said, in the county aforesaid, was delivered to the said J. S., then being one of the constables of said B. as aforesaid, and then and there having the said J. N. in his custody for the cause aforesaid ; and the said J. S. was then and there com- manded by the said A. C. the justice aforesaid, to convey the said J. N. forthwith to the said jail, and to deliver the said J. N. to the keeper of the said jail, or his deputy, together with the warrant aforesaid. And the jurors aforesaid,' upon ' their oath aforesaid, do further present, that G. H. late of B.. aforesaid, in the county aforesaid, laborer, and M. N. late of the same place, laborer, then and there well knowing the premises, afterwards, and whilst the said J. N. was in the custody of the said J. S. under the said warrant as aforesaid, and whilst the said J. S. was conveying the said J. N., under and by virtue of said warrant, to the said Commonwealth's CHAP. VIII.] ASSAULT. 49 jail situate at B. aforesaid, to wit, on the day and year last aforesaid, with force and arms, at B. aforesaid, in the county aforesaid, in and upon the said J. S., then and there being a constable as aforesaid, in the due ^nd legal exercise and per- formance of the duties of said office then and there being, and then and there lawfully having the said J. N. in his cus- tody, by virtue of the said warrant for the cause aforesaid, did make an assault, and the said J. S. then and there did beat, wound, and ill treat, and then and there, while the said J. N. was in the due and lawful execution of his said office, the said J. N. unlawfully, knowingly, and designedly ,i did obstruct, hinder, and oppose, by then and there assaulting, beating, and threatening ^ the said J. N. then and there being in the due and lawful exercise and performance of his said, office as aforesaid; against the peace, etc., and contrary to the form, etc. * This is a sufficient allegation, that the defendant knew that the person assaulted was an officer. Commonwealth v. KJrby, 2 Gushing, 277. " As to the necessity of describing the mode of obstruction, see The State V. Hailey, 2 Strobhart, 73 ; McQuoid v. The People, 2 Gilman, 76 ; The State ».' Downer, 8 Vermont, 424. CHAPTER IX. ATTEMPTS TO COMMIT CRIMES. An attempt to commit a felony is a misdemeanor, and though the crime be but a misdemeanor, is itself a misde- meanor. And to constitute such attempt, there must be ,an intent that the crime should be committed by some one, and an act done pursuant to that intent.^ In some of the United States, the attempt to commit a crime is punishable by statute. It is not necessary that it should be strictly charged in the indictment, that the act attempted was a crime punishable by law, provided it appear to be so from the facts alleged.^ Neither is it necessary to charge the offence with as much exactness as in an indictment for the crime itself.-^ 1. For an attempt to hum a dwelling-house. — Rev. Sts. of Mass. ch. 133, § 12.* That Michael Flynn, late of B. in the county of S., laborer, 'Rex V. Higgins, 2 East, 5; Rex v. Kinnersley, 1 Strange, 193, 196; Commonwealth v. Harrington, 3 Pickering, 26 ; Regina v. Meredith, 8 Car- rington & Payne, 589, 590; Rex v. Roderick, 7 Carrington & Payne, 795; Rex V. Butler, 6 Carrington & Payne, 368 ; Commonwealth v. McDonald, 5 Cashing, 365 ; CommonweaUh v. Clark, 6 Grattan, 6 75 ; Uhl v. The Com- monwealth, 6 Grattan, 706. * Commonwealth v. Flynn, 3 Cashing, 529. * Rex V. Higgins, 2 East, 5. And see Regina v. Marsh, 1 Denison, C. C. 505; 1 Temple & Mew, C. C. 192;, Hackett v. The Commonwealth, 15 Pennsylvania State Rep. 95. * It is not necessary to describe the combustible materials used for the purpose ; Commonwealth v. Flynn, 3 Gushing, 529 ; nor the particular man- ner in which the attempt was made. The People v. Bush, 4 Hill, (N. T.) 133. CHAP. IX.] ATTEMPTS TO COMMIT CKIMES. , 51 on the first day of June in the year of our Lord , at B. in the county of S., did feloniously, wilfully, and mali- ciously attempt to set fire to and burn a certain dwelling- house of one Henry Spear, then occupied by one Frederic ■ Better, there situate, and in such attempt did then and there place a quantity of combustible materials on certain boards under said dwelling-house, and did then and there set fire to said combustible materials, with the intent thereby then and there to burn said dwelling-house; but the said Flynn did then and there fail in the perpetration of said offence, so as aforesaid attempted to be perpetrated by him ; against the peace of said Commonwealth, and contrary to the' form of the statute in such case made and provided. 2. For an attempt to burn a dwelling-house in the night time, by breaking and entering a building, and setting fire to the same. — Rew. Sts. of Mass. ch. 133, § 12.i That John Harney, late of, etc., on the seventh day of May in the year of our Lord , at Roxbury in the county of Norfolk, in the night time of the same day, did attempt wil- fully and maliciously to set fire to and burn, in the night time, a certain dwelling-house there situate, of one Bernard Wal- mire, and in such attempt did then and there break and enter a certain outhouse then and there situated, of the said Wal- mire, and within the curtilage of said dwelling-house, and did then and there procure and collect together certain shavings and combustible substances, and did then and there in said, outhouse, set fire to, kindle, and burn said shavings and combustible substances, with the intent then and there to set fire to and burn, in the night time, the dwell- ing-house aforesaid, and towards the commission of such offence, but was then and there intercepted and prevented in the execution of the same ; against the peace of said Com- ^ This count is not bad for duplicity, although it sets forth a breaking and entering of the building, as well as an attempt in the building, after the breach, to set fire to it. Commonwealth v. Harney, 10 Metcalf, 422. 52 ATTEMPTS TO COMMIT CRIMES. [CHAP. IX. monwealth, and contrary to the form of the statute in such case made and provided. 3. For an attempt to commit a larceny from the person of an individual, by picking his pocket. — Rev. Sts. of Mass. ch. 133, § 12.1 That C. D. late of B. in the county of S., laborer, on the first day of June in the year of our Lord , at B. in the county of S., did attempt to commit an offence prohibited by law, to wit, did attempt, with force and arms, feloniously to steal, take, and carry away, from the person of one A. B. his personal property then in his pocket and in his possession, that being an offence prohibited by law, and in such attempt did then and there do a certain overt act towards the commis- sion of said offence, to wit, did then and there, with force and arms, feloniously and with intent then and there feloniously to steal, take, and carry away, the property of the said A. B., then and there being in his pocket on his person, thrust, insert, put, and place his said C. D.'s hand into the pocket of the said A. B., without his knowledge and against his will, but said C. D. then and there did fail in the perpetration of said offence of stealing from the person of said A. B., and was then and there intercepted and prevented in the execu- tion of the same ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. 4. For cm attempt to murder by drowning. That C. D. late of B. in the county of S., laborer, on the ' It is not necessary to allege or prove, that the party, at the time of the attempt, had any thing in his pocket, which could be the subject of larceny. Rogers v. The Commonwealth, 5 Sergeant & Kawle, 463 ; Commonwealth V. McDonald, 5 Cushing, 365. " This decision," said Fletcher, J., " is confined to the particular case under consideration, of an attempt to steal from the person ; as there may perhaps be cases of an attempt to steal, where it would be necessary to set out the particular property attempted to be stolen, and the value." CHAP. IX.] ATTEMPTS TO COMMIT CRIMES. 53 first day of June in the year of our Lord , at B. in the county of S., feloniously, wilfuUy, and maliciously did attempt to commit the crime of murder, ,by then and there feloniously, wilfully, and maliciously taking one A. B. into both the hands of the said C. D., and then and there feloniously, wilfuUy, and maliciously casting, throwing, and pushing the said A. B. into a certain pond, wherein there was a great quantity of water, and thereby then and there feloniously, wilfully, and mali- ciously attempting the said A. B. to drown, with intent thereby then and there feloniously, wilfully, and of his malice aforethought, the said A. B. to kill and murder ; against the peace of said Commonwealth, and contrary to the fofm of the statute in such case made and provided. 5. For an attempt to murder by poisoning. That C. D. late of B. in the county of S., laborer, on the first day of June in the year of our Lord , at B. in the county of S., feloniously, wilfully, and maliciously did at- tempt to commit the crime of murder, by then and there feloniously, wilfuUy, and maliciously administering to one A. B., a large quantity, to wit, two drachms of a certain deadly poison, called white arsenic, thereby then and there feloniously, wilfully, and maliciously attempting the said A. B. to poison, with intent thereby then and there the said A. B. feloniously, wilfully, and of his malice aforethought to kill and murder ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. 6. For attempting to commit suicide?- The jurors, etc., upon their oath present, that Marian, the wife of Henry Thomas Johnson, late of B. in the county of S., laborer, on the first day of June in the year of our Lord , with force and arms, at B. aforesaid, in the county afore- ^ 5 Cox, C. C. Appendix, p. xcii. 5* 54 , ATTEMPTS TO COMMIT CRIMES. [CELiP. K. said, unlawfully and wilfully did cast and throw herself from and off a certain steamboat called The Bee, then and there being propelled along the waters of a certain river there, called the Thames, into the waters of the said river, with the wicked intent and purpose of then and there feloniously, wilfully, and of her malice aforethought, choking, suffocating, drowning, and murdering herself in and by the waters aforesaid. And so the jurors aforesaid, upon their oath aforesaid, do say that the said M. J., on the day and year aforesaid, at B. aforesaid, in the county aforesaid, tmlawfully, wilfully, and wickedly did attempt and endeavor feloniously, wilfully, and of her malice aforethought, to kill and murder herself in the manner aforesaid ; against the peace, etc. CHAPTER X. BARRATRY. Every indictment for the crime of Barratry must charge the defendant with being a " common barrator," which is a term of art appropriated by law to this offence, and cannot be supplied by words of like import, such as common oppressor and disturber of the peace, or a stirrer of strife among neigh- bors.^ But the indictment, in its common form, after charg- ing that the defendant was, and yet is, a " common barrator," proceeds to state that the defendant " on the first day of June, etc., and on divers others days and times, at, etc., divers quar- rels and strifes, suits and controversies, among the honest and quiet lawful citizens of said Commonwealth, then and there did move, procure, stir up, and excite, etc."^ The law is clearly settled, that no one can be guilty of this offence, in respect to one act only. Three distinct acts at least, are necessary to constitute a common barrator.^ With respect to the form of the indictment for this offence, it is to be farther observed, that it seems to be unnecessary to allege any particular crime, or, according to the English * Commonwealth v. Davis, 11 Pickering, 432 ; Kex v. Hardwicke, 1 Sider- fin, 282 ; Hex v. Uriyn, 2 Saunders, 308, note (1) ; 1 Hawkins, P. C. ch. 27, § 5 ; 8 Co. 36. 2 1 Gabbett, Crim. Law, 137. ' The case of The Barrators, 8 R«p. 36 ; Commonwealth v. Davis, 11 Pickering, 432, 436 ; Dewey, J., Conmionwealth v. Tubbs, 1 Gushing, 3. In Commonwealth v. McCulIoch, 15 Mass. 227, the defendant was held not guilty of barratry, because there was no oppression in bringing three suits before a justice of the peace, instead of one in the Court of Common PleEis, the costs of the three not being more than those of the one. 56 BARKATRT. [CHAP. X. authorities, to allege the offence to have been committed at any certain place ; for from the nature of the crime, which consists of the repetition of several acts, it must be supposed to have happened in several places, and therefore it has been holden, that the trial or jury process shall be out of the body of the county.^ But no reason is perceived, why an indict- ment for this offence should not charge it to have been com- mitted at a certain place, according to the common rules of criminal pleading,^ But though an indictment for barratry, in a general form, alleging the defendant to be a common bar- rator, without showing any particular acts, is good, yet the Court will not suffer the trial to proceed, unless the govern- ment has seasonably, if requested, given the defendant a note of the particular acts of barratry intended to be proved against him.-5 And when the note of particulars is given, the govern- ment 'is not at liberty to give evidence of any other acts of barratry than those which are therein stated.* But the note of particulars is no part of the record, and is not open to demurrer, or motion in arrest of judgment. If the defendant is really misled or surprised by finding more than one magis- trate of the same surname and same initial to their Christian ' Parcel's case, Cro. Eliz. 195; Palfrey's case, Cro. Jac. 527; 1 Hawkins, P. C. cli. 27, § 11 ; 1 Gabbett, Crim. Law, 137, 138. ' In 2 Hale, P. C. 180, it is said, " In some crimes no vill need be named as upon an indictment of barratry, because he is a barrator everywhere, and it shall be tried de corpore comitaim, T. 43 Eliz., B. K. Tunststll's case ; but P. 3 Car. B. R. Mann's case, the indictment was quashed for want of a vill alleged ; the latter resolution is fittest to be pursued." ' Rex V. Wylie, 1 Bosanquet & Puller, 92, 95, Heath, J. ; Commonwealth V. Davis, 11 Pickering, 432. A note of particulars, stating that " evidence will be given concerning a complaint before A. B. esquire," sufficiently des- ignates a proceeding where the complaint was made to another magistrate, and the warrant issued thereon was returned to A. B. for a hearing. Com- monwealth V. Davis, ubi supra. * Goddard v. Smith, 6 Modern Rep. 262; 1 Gabbett, Crim. Law, 138. But see Iveson v. Moore, 1 Lord Raymond, 490, where Gould, J., lays down the law, that after the prosecutor has proved the instances assigned in the note of particulars, he shall be admitted to prove as many more of them as he pleases, to aggravate the fine. CHAP. X.] BARRATRY. 57 names, or more than one proceeding which would come under the designation in the note of particulars, and not identified by a statement of time, it should be shown as a ground for postponing the trial.^ Barratry is an offence at common law.^ The indictment should therefore conclude " against the peace ; " and "the omis- sion was held to be fatal.' The indictment may also con- clude "against the statute," though no statute creates the offence, nor provides any specific punishment, for it* Whether the indictment should also conclude ad commune nocumentwn, is a question upon which the authorities differ.^ In Rex v. * Commonwealth v. Davis, 11 Pickering, 432; The State v. Chitty, 1 Bailey, 379. " 1 Gabbett, Crim. Law, 138. ' Palfrey's case, Cro. Jac. 527. « 1 Hawkins, P. C. ch. 27, § 10. " In Hawkins's Pleas of the Crown, (bk. 2, ch. 25, § 59,) it is said, " that there is no need, in the conclusion of such an indictment, to lay the offence ad nocumentum omnium ligeorum, etc., but that diversorum is sufficient in such an indictment, as well as in an indictment of a common scold, etc., because it appears from the nature of the thing, that it could not but be a common nuisance." Starkie, (1 Crim. PL, London ed. 1828,) 208, referring to the above passage from Hawkins, and to Rex v. Cooper, 2 Strange, 1246, contra, says, " When the indictment is founded upon some act or omission, which is punishable as a nuisance to the public in general, it is usually averred to have been done or omitted, ad commune nocumentum of the king's subjects ; but these words are not essential, for they neither describe the crime itself, nor the facts which constitute it; and if the facts charged must, from their very nature, have been a nuisance to society, it is unnecessary to aver that which the court cannot but infer. And therefore, though indictments against com- mon scolds and common barrators usually conclude ad commune nocumen- tum, the conclusion has been deemed unnecessary." Archbold, (Crim. PI., London ed. 1853,) 55, also says," Indictments for nuisance usually conclude, ' to the great damage and common nuisance of all the liege subjects of our said lady the Queen,' as well as against the peace, etc. ; but the conclusion, ad commune nocumentum, does not seem to be essential." On the other hand, Chitty, 2 Crim. Law, (Perkins's ed.), *233, note (y), on the authority of Rex V. Cooper, says that this conclusion is necessary. And so Gabbett, (2 Crim. Law, 244,) on the authority of the same case, and also referring to the above passage from Hawkins's Pleas of the Crown, says, " But the words ' to the common nuisance of all the liege subjects of our lord the King,' are, 58 BARRATRY. [CHAP. X. Cooper,^ it was held, that an indictment against a scold must be charged ad commune nocumentum; and it is difficult, in principle, to distinguish that case from that of a common bar- rator. 1. Indictment for being" a common barrator. The jurors, etc., upon their oath present, that C. D. late of B. in the county of S., laborer, on the first day of June in the year of our Lord , at B. in the county of S., and on divers other days and times between that day and the day of the finding of this indictment, at B. aforesaid, in the county aforesaid, divers quarrels, strifes, suits, and contiover- sies among the honest and peaceable citizens of said Com- monwealth then and there on the days and times aforesaid, did move, procure, stir up, and excite. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said C. D. at B. aforesaid, in the county aforesaid, on said days and times was and still is a common barrator ; to the com- mon nuisance, etc., and against the peace, etc. properly, used in all indictments for common nuisances, and against barra- tors and scolds." And Purcell, in his late treatise on the Law of Criminal Pleading and Evidence, 87, says, " But the words, ' to the conunon nuisance of all the liege subjects of our lady the Queen,' seem, according to the better opinion, to be necessary in all the indictments for common nuisances, and against scolds and barratoi's." In Massachusetts, it has been very recently held, that an indictment for an indecent exposure of the person, need not conclude to the common nuisance ; Commonwealth v. Haynes, Supreme Judicial Court, Middlesex, Oct. T. 1854 ; nor a complaint for being a com- mon drunkard; Commonwealth r. Boon, Supreme Judicial Court, Mid- dlesex, Oct. T. 1854. And see Regina v. Holmes, 6 Cox, C. C. 216 ; 20 Eng. Law and Eq. Kep. 597 ; 1 Dearsly, C. C. 207; 3 Carrington & Kir- wan, 360 ; Commonwealth v. Smith, 6 Gushing, 80. ' 2 Strange, 1246. CHAPTER XI. BLASPHEMY. " In general, blasphemy may be described," says Chief Jus- tice Shaw, " as consisting in speaking evil of the Deity with an impious purpose, to derogate from the divine majesty, and to alienate the minds of others from the love and reverence of God."i And all contumelious reproaches of our Saviour, Jesus Christ, all profane scoffing at the Holy Scriptures, or ex- posing any part of them to contempt and ridicule, and all writ- ings against the Christian religion, are regarded by the common law as blasphemous.2 " In most of the United States," says Professor Greenleaf, " statutes have been enacted against this offence ; but these statutes are not understood in all cases to have abrogated the common law ; the rule being, that where the statute does not vary the class and character of an offence, as, for example, by raising what was a misdemeanor into a felony, but only authorizes a particular mode of proceeding and of punishment, the sanction is cumulative, and the com- mon law is not taken away." ^ Thus, it was held, that, not- withstanding the provisions of the statute against blasphemy. ^ Commonwealth v. Kneeland, 20 Pickering, 206, 213. ''Andrew v. New York Bible Society, 4 Sandford, 156; Updegrapli v. The Conmion wealth, 11 Sergeant & Eawle, 394; The State v. Chandler, 2 Harrington, (Del.) 553 ; The People v. Kuggles, 8 Johnson, 290 ; Common- wealth V. Kneeland, 20 Pickering, 206 ; Eex v. Woolston, 2 Strange, 834 ; Fitzgerald, 64; Barnardiston, 162; Kex v. Taylor, 1 Ventris, 293; 3 Keble, 607 ; Rex v. Waddington, 1 Barnewall & Cresswell, 26 ; Kex v. Carlile, 3 Barn wall & Adolphus, 161. ' 3 Greenleaf, Ev. § 69 ; Commonwealth i;. Ayer, 3 Gushing, 150. 60 BLASPHEMY. [CHAP, XL a blasphemous libel might be prosecuted as a common law offence.! 1. Indictment for a blasphemous libel. The jurors for, etc., upon their oath present, that C. D. late of B. in the county of S., bookseller, on the first day of June in the year of our Lord , with force and arms, at B. aforesaid, in the county aforesaid, falsely, maliciously,^ wil- fully, and profanely did compose, print, and publish, and cause and procure to be composed, printed, and published,^ a certain false, scandalous, impious, blasphemous, and profane libel, of and concerning the Holy Scriptures and the Christian religion, in one part of which said libel there were and are contained, among other things, certain false, scandalous, im- pious, blasphemous, and profane matters and things, of and concerning the Holy Scriptures and the Christian religion, according to the tenor following, that is to say : here set out the libellous passage ; and if there be another such passage in another part of the libel, introduce it thus : and in another part thereof there were and are contained, among other things, cer- tain other false, scandalous, impious, blasphemous, and pro- fane matters and things, of and concerning the Holy Scrip- tures and the Christian religion, according to the tenor fol- lowing, that is to say, etc. etc.;* against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. 2. For blasphemy, by blaspheming the holy name of God. — Eev. Sts. of Mass. ch. 130, § 15. That C. D. late of B. in the county of S., laborer, on the ' Kex V. Carlile, 3 Bamwall & Adolphus, 161. ' These words seem to be necessary. See the able dissenting opinion of Morton, J.'in Commonwealth v. Kneeland, 20 Pickering, 206, 244. " This averment is not bad for duplicity. 2 Gabbett, Crim. Law, 234 ; Commonwealth v. Twitchell, 4 Gushing, 74, 75. * See Tabart v. Tipper, 1 Campbell, 850, 353. CHAP. XI.J BLASPHEMY. 61 first day of June in the year of our Lord , at B. afore- said, in the county aforesaid, did wilfully blaspheme the holy name of God, by then and there denying, cursing, and con- tumeliously reproaching God, his creation, government,' and final judging of the world ; that is to say, the said C. D. then and there, in the presence and hearing of divers good and worthy citizens of said Commonwealth, did wilfully, pro- fanely,^ and blasphemously speak, pronounce, utter, and pub- lish the profane and blasphemous words following, to wit, here insert the words spoken and published, verbatim, and with proper innuendoes, if the words require it;^ against the peace of said Commonwealth, and contrary to the form of the stat- ute in such case made and provided. ^ Under the Pennsylvania statute of 1700, it is necessary to aver that the •words were, uttered profanely; fair promulgation of opinions respecting religion not being criminal. Updegraph v. The Commonwealth, 11 Sergeant & Rawle, 394. ' It seems, that it is not sufficient to lay the substance of the words alleged to have been spoken. The words themselves must be charged, though only the substance need be proved. Updegraph v. The Commonwealth, 11 Ser- geant & Rawle, 394. CHAPTEK XII. BRIBERY. The offence is complete by the offer of the bribe, so far as the offerer is concerned. If the offer is accepted, both parties are guilty.^ 1. Indictment for attempting to bribe a constable? The jurors, etc., upon their oath present, that on the first day of June in the year of our Lord , at B. in the county of S., one A. C, esquire, then and yet being one of the jus- tices of the peace within and for the said county of S., duly qualified to discharge and perform the duties of said office, did then and there' under a certain warrant under his hand and seal, in due form of law, bearing date the day and year aforesaid, directed to aU constables and other peace officers of the said county, and especially to J. N., thereby commanding them, upon sight thereof, to take and bring before the said A. C, so being such justice as aforesaid, or some other justice of the peace within and for the said county of S., the body of D. F. late of B. aforesaid, in the County aforesaid, to answer, etc., etc., as in the warrant; and which said warrant after- wards, to wit, on the day and year aforesaid, at B. aforesaid, in the county aforesaid, was delivered to the said J. N. then being one of the constables of said B., to be executed in due 1 United States v. Worrall, 2 Dallas, 384 ; Barefield v. The State, 14 Alabama, 603 ; 3 Greenleaf, Ev. § 72 ; 1 Gabbett, Crim. Law, 163. ' Archbold, Crim. PI. (Am. ed. 1846), 586 ; Matthews, Crim. Law, 432 ; 6 Cox, C. C. Appendix, p. cxiv. CHAP. Xn.] BRIBERY. 63 form of law. And the jurors aforesaid, upon their oath afore- said, do further present, that J. S., well knowing the premises, afterwards, to wit, on the day and year aforesaid, at B. afore- said, in the county aforesaid, unlawfully, wickedly, and. cor- ruptly did offer unto the said J. N., so being constable as aforesaid, and then and there having in his custody and pos- session the said warrant so delivered to him to be executed as aforesaid, the sum of fifty dollars,^ if the said J. N. would refrain from executing the said warrant, and from taking and arresting the said D. F. under and by virtue of the same, for and during fourteen days from that time, that is to say, from the time the said J. S. so offered the said sum of fifty dollars to the said J. N. as aforesaid. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said J. N. on the first day of June in the year aforesaid, at B. aforesaid, in the county aforesaid, in manner and form aforesaid, did unlaw- fully attempt and endeavor to bribe the said J. N., so being constable as aforesaid, to neglect and omit to do his duty as such constable, and to refirain from taking and arresting the said D. F. under and by virtue of the warrant aforesaid ; against the peace, etc. ' ' See Commonwealth v. Chapman, 1 Virginia Cases, 138. CHAPTER XIII. An indictment for burglary, either at common law or under the statute, in order to be valid to support a conviction, must comprise certain essential points in addition to the ordinary requisites to an indictment, and these essential points we shall now proceed to consider. In Hale's Pleas of the Crown is the following precedent: — "Quod J. S., 1 die Julii, anno, etc., in nocte ejusdem diei vi et armis domum mansionalem A. B. felonicS et burglaritSr fregit et intravit, ac ad tunc et ibidem unura scyphum argenteum, etc., de bonis et cataUis ejusdem A. B., in eadem ddmo inventis felonicd et burglariter furatus fuit cepit et asportavit ; " or, if no theft were actually committed, then " ex intentione ad bona et catalla ejusdem A B., in eMera. domo existentia felionicS et burglaritSr furan- dum capiendum et asportandum, or, eS. intentione ad ipsum A. B., ibidem felonic^ interficiendum contr^ pacem, etc." 2 And upon this precedent he has the following remarks, which he divides into five distinct clauses, each of them essential to the constitution of an indictment for burglary : — 1. That it is said noctanter, in "the night time, or, rwcte ejusdem diei, in the night of the 'same day, for if it be in the daytime it is not burglary.' 3. That it be said burglariter, burglariously, ' In the preparation of this chapter, free use has been made of Wilmot's very excellent Digest of the Law of Burglary, London, 1851. » 1 Hale, P. C. 549. * Lewis V. The State, 16 Connecticut, 32; Commonwealth v. Mark, 4 Leigh, G58 ; Thomas v. The State, 5 Howard, (Mississippi,) 20 ; The State V. Wilson, Coxe, 439, 440. CHAP. SIII.J BURGLARY. 65 for it is a legal word of art, without which burglary cannot be expressed with any kind of other word or circumlocution. And, therefore, where the indictment is bwrgalriter, instead of burglariter, it makes no indictment for burglary, — so if it be burgenter. 3. Jt must he fregit et intravit, broke and entered, for it is held, that breaking without entering, or entering with- out breaking, makes not burglary : yet (Trin., 5 Jac, B. Regis), an indictment quod felonicS et burglaritSr, fregit. donvum mansionalem, etc., was a good indictment for burglary, that the entry is sufficiently implied, even in an indictment by the words burglariter fregit, but the safest and common way is to say, fregit et intravit.^ 4. It must be said domum mansioncdem, the dwelling or mansion-house, where burglary is committed, and not generally domum, for that is too uncertain and large. 5. It must be alleged, that the prisoner committed' a felony in the same house, or that he broke and entered the house to the intent to commit a felony.^ It is to be observed, that Hale does not make any mention of the particular day, as being essential in indictments for burglary. And it is not necessary to lay the precise day on which the offence was committed ; and the indictment is good, even if, at the day laid, no burglary had actually taken place.^ The precedent furnished by Lord Hale does not specify the particular hour of the night at which the burglary took place. But elsewhere, he says, " Where the time of the day is mate- rial to ascertain the nature of the offence, it must be expressed in the indictment, as in an indictment for burglary it ought to say, tali die circa horam decimum in nocte ejusdem diei felo- nies et burglariter fregit, yet by some opinions burglariter car- ries a sufficient expression, that it was done in the night time." * And in a recent case it was held sufficient to allege that the crime was committed " burglariously," without stat- ' Fielding's case, Dyer, 58, 99. » 1 Hale, P. C. 549, 550. » Wilmot, Law of Burglary, 187, 191; Syer's case, Coke, 3 Inst. 230; Kelyng, 16. *2Hale, P.C.I 79. 66 BURGLARY. [CHAP. XIH. ing the time at which it was committed, or that it Was done in the night time.i But that the precise hour should, at all events, be mentioned, we have the authority of East, founded on a case actually decided on this point. " The indictment must also not only state the fact to have been done iri the night of such a day, but it ought also to express at about what hour of the night it happened ; though it does not seem necessary that the evidence should strictly correspond with the latter allegation. In Waddington's case, the indictment for burglary alleged the fact to have been committed in the night, but did not express at or about what hour it was done. Gould, J., held the indictment insufficient as for a bur- glary, and directed the prisoner to be found guilty of simple larceny only. He said, that as the rule then established was, that a burglary could not be committed during the twilight, it was therefore necessary to specify the hour, in order that the fact might appear, upon the face of the indictment, to have been done between the twilight of the evening and that of the morning." ^ ' Kegina v. Thompson, 2 Cox, C. C. 445 ; Mundell's Digest, 33. The term " burglariously," says Hinman, J., in Lewis v. The State, 16 Connecti- cut, 32, 34, " is understood, in modem professional language, to imply that the act was done in the night." ' Waddington's case, 2 East, P. C. 513; Lewis v. The State, 16 Connecti- cut, 32. In an early case in Vermont, it was said, that in cases of burglary the hour when the offence is committed must be set forth. The State v. Gr. S., 2 Tyler, 195, 300, (1802). In Massachusetts, it has-been reeently held, in the case of Commonwealth v. ,WilIiams, 2 Gushing, 582, (1849,) that since the passing of St. 1847, ch. 13, defining " the time of night time in crim- inal prosecutions," it is sufficient to allege, generally, that an offence was com- mitted in the night time, without designating the particular hour of the night; and by such allegation is to be understood the period of night time as defined in that statute. In this case, Dewey, J., said, " The allegation in the indict- ment is, that the defendant broke and entered the city hall on the- twelfth day of November, 1847, ' in the night time of said day.' It has been con- sidered proper and necessary, until the statute of 1847, ch. 13, and such are the usual precedents, to state some particular hour of the night in which the burglary was alleged to have been committed. The reason for this seems to have been, that one might, with a felonious intent, have broken and entered a building, at a time properly called, in popular language, night time, and CHAP. XIII.] BURGLARY. 67 With regard to the second essential qualification in an indictment for burglary, as above laid down by Hale, in the first place, every indictment for felony must allege the fapt to have been done felonice, feloniously .^ And, without the inser- tion of such word, an indictment for burglary would fail ; nor is the word " feloniously " sufficient, unless the word " burgla- riously" be added. For it is a legal word of art, without which burglary cannot be expressed with any kind of other word, or other circumlocution.^ But in Massachusetts, it has been recently decided, that the statute definition of house- breaking has done away with the common law requisitions of the offence, so that burglaritir "no longer makes a part of the quo modo of the crime.^ Biit if the word " burglariously " in yet not have committed the crime of burglary ; the time in which that offence can be committed being not so far extended as to embrace the night time, in the ordinary use of that word, but a period when the light of day had so far disappeared, that the face of a person was not discernible by the light of the sun or twilight. But the statute just cited has defined ' night time ' for all purposes of criminal proceedings. Wherever ' night time ' is now used in an indictment, as descriptive of the time of the commission of _ the offence, it is to be understood of the night time as defined by this statute. The allegation, that the breaking and entering were in that night time, is vir- tually an allegation that the offence was committed during the time between one hour after suusetting op one day, and one hour before sunrising on the next day." In New Hampshire, it has been decided, that night time con- sists of the period from the termination of daylight in the evening, to the earliest da^yn of the next morning. The State v. Bancroft, 10 New Hamp- shire, 105. And so in two early cases in Massachusetts. Commonwealth v. Chevalier, 7 Dane's Abridgment, 134, (1794); Commonwealth v. Steward, 7 Daiie's Abridgment, 136, (1789). » 2 Hale, P. C. 184. " 1 Hale, P. C. 550; 2 East, P. C. 512; Long's case, 5 Coke, Eep. 121 ; Brooke's case, 4 Coke, Kep. 39 ; same case alluded to by Crompton, fol. 34. ' TuUy V. The Commonwealth, 4 Metcalf, 357, (1842). "We call this decision an important one," says George Bemis, Esq., in an interesting article .in the Law Reporter, January, 1847, p. 387, " because in connection with a class of cases which have begun to form a line of precedents in the Itlassachusetts courts, Josslyn v. The Commonwealth, 6 Metcalf, 236 ; Devoe V. The Commonwealth, 3 Metcalf, 316 ; Commonwealth v. Squire, 1 Metcalf, 258, the old landmarks are fast vanishing in the jurisprudence of that 68 ' BUKGLARY. [CHAP. XLH. the indictment were merely misspelt, and were idem sonans, as if it were berglariously instead of burglariously, such error would not vitiate the indictment,^ With regard to the third point mentioned by Lord Hale, the words f regit et inlravit, — Anglici, broke and entered, are both necessary to support an indictment for burglary, for, as has already been seen, the breaking without the entry, and the entry without the breaking, are insufficient.^ With regard to the fourth point, it is said in Hawkins's Pleas of the Crown, the word house would be insufficient to support an indictment for burglary.^ But Hawkins says, in a subsequent part of the same section, " Staundforde and Anderson mentioned precedents of indictments of burglary in domo, without adding , mansionali ; however, the constant course of late precedents and opinions make it certainly a very dangerous, if not an incurable fault, to omit the word mansionalis in an indictment of burglary in a house, and therefore, without question, it ought always to be inserted where the truth of the case will bear it." The term " mansion- house," domus mansionalis, used by Hale, has grown into dis- use, and the word dwelling-house is now generally used. But the words " mansion-house " sufficiently describe a dwelling- house.* The name of the owner of the dwelling-house must be stated with accuracy.^ " In all cases of this description," says respectable Commonwealth, before the supposed efficacy of statute phrase- ology, — phraseology, too, which has hardly changed a whit for the last half century, and under which common law technicalities have hitherto been deemed indispensable." See also an article by the same gentleman in The Monthly Law Reporter, n. s. vol. 6, p. 199. ' Wilmot, Law of Burglary, 194. And see Williams v. Ogle, 2 Strange, 889; Rex v. Shakspeare, 10 East, 83; Archbold, Crim. PL (London ed. 1853), 174. ' Wilmot, Law of Burglary, 195. See Rex v. Compton, 7 Carrington & Payne, 139. ' 1 Hawkins, P. C. ch. 30, § 10. ' Commonwealth v. Pennock, 3 Sergeant & Rawle, 199. " Rex V. White, 1 Leach, C. C. (4th London ed.), 252 ; 2 East, P. C. 513 ; Woodward's case, 1 Leach, C. C. (4th London ed.), 253, note ; Cole's case. CHAP. Xni.] BURGLARY. 69 Aichbold, " if there be any the slightest doabt whether the house broken and entered should be described as the 'dwell- ing-house o/^ A., B.,-or C, the pleader should obviate the dif- ficulty by inserting counts' alleging it to be the dwelling- house of A., B., and C, respectively." ^ Burglary may be committed in a church, at common law.^ An indictment for burglary in a church need not lay the offence as committed in a dwelling-house. " An indictment," says Hale, "quod felonicS et burglariter fregit et intravit eccle- siam parochialem de D. ek intentione, is a good indictment, for ecclesia is domus mansionalis." * But it is not necessary Moor, 466 ; 2 East, P. C. 513. It is sufficient to lay the ownership of the house in a married woman who lives apart from her husband, and has the occupancy and control of the dwelling. Ducher v. The State, 18 Ohio, 308. \ The word " of" sufficiently alleges the ownership of the property. Com- monwealth V. Williams, 2 Gushing, 582. " The indictment charges," said Dewey, J., in this case, " that the defendants broke and entered the city hall of the city of Charlestown. The objection is, that there is no averment of property in the city of Charlestown. To sustain the objection, reference was made by the counsel for the defendants to the forms of indictments for larcenies, and for other criminal ofi'ences affecting personal property. If these were proper tests, the averment in this indictment would be found to be defective. The ownership of personal chattels is stated more fully ; the usual form being, that they are ' the goods and chattels of A. B.' But a reference to the best books of precedents in criminal pleading will fully sus- tain the distinction between the modes of describing real and personal prop- erty, in reference to the ownership of such property. While the latter is described as has been stated, a very general, if not universal mode of describ- ing the ownership of real estate, is similar to that adopted in the present case. This is peculiarly so in indictments for arson, burglary, and malicious mischief. This was the form of indictment in the case of Commonwealth v. Taylor, 5 Binney, 277, for breaking and entering a house; and in the cases of Commonwealth v. Squire, 1 Metcalf, 258, and Commonwealth v. Harney, 10 Metcalf, 422, fc^r malicious burning of buildings. The present indictment does sufficiently allege the ownership of the property, and that it was a pub- lic building." ' Archbold, Crim. PI. (Am. ed. 1846), 364. ' Regina v. Baker, 3 Cox, C. C. 581, (184*). In this case, Alderson, B., said, " I take it to be settled law that burglary may be committed in a church, at common law. I so held lately, on circuit." * 1 Hale, P. C. 556. 70 BUBGLART. , [CHAP. XIH. to say, that a church is a mansion-house, for a burglary in a church is a distinct burglary of itself. And Coke says, " They be burglars which break any house or church in the night, although they take away nothing." ^ In the case, therefore, of a burglary in a church, the indictment should charge that the defendant feloniously and burglariously broke and entered the parish church of the parish to which it belengs, with intent, etc., according to the circumstances of the case.^ In some of the United States, the offence is now provided by statute, which makes it a distinct felony to break and enter any cburch or chapel, and steal any chattel therein. But in a very recent English case, Alderson, B., ruled that the acts of Parliament which particularly relate to offences respecting churches, do not destroy the offence at common law.^ Where an outhouse having the same protection as the dwelling-house, has been broken into, the offence may either be laid to have been committed in the dwelling-house, or in the buUding parcel thereof.* The place in which the dwelling-house where the burglary has been committed must be stated in the indictment, and proved as laid ; a variance is fatal.* But it has been held, that if it be not expressly stated where the dwelling-house is situated, it shall be taken to be situated at the place named in the indictment by way of special venue.^ It is sufficient to allege that the burglary was committed at ^ place named, as '' at N. in the county aforesaid," without stating it to be a parish, vill, or the like.'^ "Where an indictment alleges a dwell- 1 Coke, 3 Inst. 65. 2 2 East, P. C. 512; Wilmot, Law of Burglary, 198. See also 1 Hawkins, P. C. ch. 38, § 10. ' Kegina v. Baker, 3 Cox, C. C. 581, (1849). * Rex V. Garland, 2 East, P. C. 493. In Dobbs's case, 2 East, P. C. the prisoner was indicted for burglary in the stable of J. B., jjart oflm dwelling- house. ^ 2 Starkie, Crim. PI. (London ed. 1828,) 437, note (z). ' Rex u. Napper, 1 Moody, C. C. 441. ' Regina v. Brookes, Carrington & Marshman, 544. See Wood's case, 2 Lewin, C. C. 3G. CHAP. XIII. J . EXIROLARY. 71 ing-house to be situate "at the parish aforesaid," the parish last mentioned must be intended.^ Where a dwelling-house is partly in one parish and partly in another, it has been held correct to lay the offence as committed in' that parish in which lies the part of the house so broken into.^ In all cases where any difficulty is likely to arise respecting the local de- scription of the dwelling-house, different counts should be inserted in the indictment, varying it according to the circum- stances. The allegation of place, as of time, must be repeated in the averment of every distinct material fact. But after the place has been once stated with certainty, it is sufficient afterwards, in subsequent allegations, to refer to it by the words " there," or " there situate," {ibidim, in ancient indictments,) and the effect of these words is equivalent to an actual repetition of the place.^ It is however usual, in modern practice, to repeat the words, "in the said dwelling-house," or, "in the said dwelling-house then being," and " at B. aforesaid, in the county aforesaid." * ' Rex V. Richards, 1 Moody & Robinson, 177. 'Rex V. Howell, 1 Cox, G. C. 190; Regina v. Brookes, Carrington & Marshman, 543. See Rex v. Bennett, Russell & Ryan, C. C. 289. In the case of Rex V. Bullock, 1 Moody, C. C. 324, note, which was an indictment for breaking into a house and stealing goods, the house was laid to be in the parish of Saint Botolph, Aldgate, and it was proved that' the .parish was Saint Botolph, without Aldgate. The judge who tried the case directed an acquittal of the capital part of the charge, but allowed a verdict of guilty of the larceny. But upon a case reserved, it was held, that as there was no negative evidence of there not being such a parish as Saint Botolph, Aid- gate, the conviction was right. Where an indictment alleged that a burglary was committed " at the parish of Woolwich," and the prosecutor proved that the correct name of the parish was " Saint Mary, Woolwich," but the parish is called the parish of Woolwich in an act of Parliament, it was held, that as the act showed that the parish was known by the name of the parish of Wool- wich, the indictment was sufficient., Regina v.' St. John, 9 Carrington & Payne, 40. ' 1 Starkie, Grim. PI. (London ed. 1828), 58 ; 2 Gabbett, Grim. Law, 223, 224 ; The State v. Cotton, 4 Foster, 143. * An indictment, after charging the prisoner with breaking and entering 72 BURGLARY. [CHAP. Xni. The fifth qualification given us by Lord Hale as essential to support an indictment for burglary, is as follows : — "It must be alleged that the prisoner committed a felony in the same house, or that he broke and entered the house to the intent to commit a felony." ^ Here there are two allegations, either of which is sufficient to support an indictment for burglary, for we may either say that the prisoner burglariously broke and entered with the intent to commit felony, or if the evidence can support the charge of felony actually committed, it' may be alleged that the prisoner actually committed the felony, without laying the intent, for the intent may be inferred from the facts of tfie case.^ " The commission of felony," Lord Hale observes, " is sufficient evidence of the intention." ^ It is here to be remarked, that the proof of a breaking and entering in the night, with intent to steal, will not support an indictment for btirglariously breaMng, etc., and stealing goods ; though the converse of this proposition is not true ; the actual commission of the larceny comprehended in this latter charge, being evidence of the entering with intent to the house in the usual form, charged that he, forty-two pieces df the current gold coin of this realm, called sovereigns, etc., in the same dwelling-house then and there being found, then and there feloniously did steal, take, and carry away, etc. It was objected that the words " then and there" were insufficient, and there ought to have been added to them, "in the same dwelling-house." But Coleridge, J., after referring to the case of Begina v. Smith, 2 Moody & Kobinson, 115, (1838,) where Patteson, J., held a similar objection valid, said, " I had occasion to mention that case to my Brother Patteson, and he seemed to think the decision was incorrect. I think the present indictment is sufficient" Begina v, Andrews, Carrington & Marsh- man, 121, (1841). See Eegina v. Watkins, Carrington & Marshman, 264; Regina v. Page, 9 Carrington & Payne, 756. ' 1 Hale, P. C. 550. The breaking and entering a dwelling-house in the night time is not burglary, unless it be done with intent to commit a felony. Therefore, the breaking and entering a dwelling-house, with intent to cut oflf an ear of an inhabitant, is not a felony ; Commonwealth v. Newell, 7 Mass. 245 ; nor a breaking and entering mth intent to commit adultery. The State V. Cooper, 16 Vermont, 551. ' Wilmot, Law of Burglary, 212. ' Rex V. Locost, 1 Hale, P. C. 560 ; Kelyng, 30 ; Commonwealth v. Hope, 22 Pickering, 1, 5. CHAP. Xin.] BTJRGLAEY. 73 commit it. In all cases where an actual felony has been committed, it is sufficient to allege the commission thereof; but it is the better course first to lay the intent, and then to state the particular felony which has been in fact committed. This was Lord Hale's advice ; and it has been sanctioned in the case of E.ex v. Furnival, where a doubt occurred to the judge who tried the prisoner, whether the omission of the words " with intent to steal " would not vitiate the indict- ment, which charged the prisoner only with burglariously breaking and entering the dwelling-house of one T. R., and then and there feloniously and burglariously stealing goods therein. But upon a case reserved, the judges were of opin- ion, that on an indictment like this, the prisoner might well be convicted of burglary, if the larceny was proved ; other- wise, if not. The reason of which appears to be, that where the indictment is confined to charging the burglary and fel- ony, omitting the intent, etc., then if the prisoner is acquitted of the felony, the indictment stands single, as a charge of burglary, (or of burglariously and feloniously breaking and entering a dwelling-house in the night,) and therefore defec- tive, because it wants the direct allegation of the intent to commit a particular felony ; which intent is a necessary ingredient to complete the offence of burglary.-' In Massachusetts it has been held, that the charge of break- ing and entering a house, and actually stealing therefrom, though in effect charging two distinct offences, was to be punished only as one offence, of brealdng and entering with an- intent to steal.^ "That case," says Chief-Justice Shaw, " was decided on the ground, that where breaking and enter- ing are averred, and an actual stealing at the same time, all charged in one count, the charge of stealing is substituted for an averment of an intent to steal ; a mode of charging which ' Kex V. Furnival, Russell & Eyan, C. C. 445 ; Commonwealth v. Brown, 3 Rawle, 207 ; Jones v. The State, 11 New Hampshire, 269 ; The State v. Ayer, 3 Foster, 301, 318; 1 Gabbett, Crim. Law, 194. ' Commonwealth v. Hope, 22 Pickering, 1 ; Commonwealth v. Tuck, 20 Pickering, 356 ; Devoe v. The Commonwealth, 3 Metcalf, 316. 7 74 BUKGLAKY. [CHAP. XUI. is warranted by the precedents there cited. We think the distinction to be this ; that where the breaking and entering and actual stealing, are charged in one count, there is but one offence charged, and there can be but one penalty adjudged. But where they are averred in distinct counts, as distinct sub- stantive oiTences, not alleged to have been committed at the same time, and as one continued act ; if, in other respects, they are such offences as may be joined in the same indict- ment, the defendant may be convicted on both, and a judg- ment rendered, founded on both." ^ With regard to the first allegation above mentioned, by Lord Hale, where the indictment lays the actual commission of felony, without laying the intent, the actual commission of felony must be proved. Where one was indicted for burglary and stealing, and it appeared that there were no goods stolen, but a burglary with intent to steal, and not being so laid, as it ought to have been, the prisoner was acquitted.^ So, also, if an indictment for burglary charge an actual rape, evidence of an assault, with intent to ravish, wiU not support it.^ Where an indictment for burglary charges an actual steal- ing of goods, the owner of such goods must be correctly named.* Wher^e the indictment was for breaking and enter- ing, etc., the house of J. Davis, with intent to steal the goods of J. Wakelin, and there was no such person who had goods in the house; but J. Wakelin was put, by mistake, for J. Davis, the prisoner was entitled to an acquittal, and it was ruled that the words "J. Wakelin" could not be rejected as surplusage, for the words were sensible and material, it being material to lay truly the property in the goods, and without such ' Josslyn V. The Commonwealth, 6 Metcalf, 236, 238 ; Lamed v. The Commonwealth, 12 Metcalf, 240, 244; Crowley v. The Commonwealth, 11 Metcalf, 575; Kite v. The Commonwealth, 11 Metcalf, 681. So also, in New Hampshire, The State v. Ayer, 3 Foster, 301, 318; The State v. Moore, 12 New Hampshire, 42; The State v. Squires, 11 New Hampshire, 37 ; Jones «. The State, 11 New Hampshire, 269. ^ 2 East, P. C. 614. ' Wilmot, Law of Burglary, 214. ' Jones and Beyer's case, Kelyng, 52. CHAP. XIII.] BUBGLABT. 75 words the description' of the offence would be incomplete?- But it appears that if the name of the goods has once been cor- rectly stated in the indictment, an error in the subsequent part will not vitiate it.^ A bailee may have such property in goods as to be considered the owner of them, if aij indict- ment for burglary with intent to steal the goods, or an indict- ment alleging the actual stealing of them, lay the ownership in him.^ An indictment for burglary may allege an intent to commit felony, without alleging an actual felony committed. But in this case, care must be taken that the actual felony done cor- respond with the felony laid, as intended to be done, other- wise the indictment will be bad.* But if in committing the felony laid in the indictment as intended to be committed, a person commit another felony, which results from, or is neces- sarily connected with, the felony intended, this will not vitiate the indictment. For it is a general rule, that a man who commits one sort of felony, in attempting to commit another, cannot excuse himself upon the ground that he did not intend the commission of that particular offence. Yet this, it seems, musfr-be confined to cases where the offence intended is itself a felony.^ It may sometimes become expedient, from the particular circumstances of the case, that different intents should be » Rex V. Jenks, 2 Leach, C. C. (4th London ed.), 774; 2 East, P. C. 514. ' Wilmot, Law of Burglary, 214. And see Regina v. Rudge, 1 Russell, Crim. Law, 825, note by Greaves ; K«x v. Exminster, 6 Adolphus & Ellis, 598. ' Regina v. Bird, 9 Carrington & Payne, 44 ; The State v. Ayer, 3 Foster, 301. An indictment under the St. 7 & 8 Geo. 4, ch. 29, § 11, for breaking out of a dwelling-house, having committed felony therein, must, if the felony be in having stolen goods, allege the ownership of them exactly as in an indictment for burglary at common law, and such allegation must be proved as laid. Wilmot, Law of Burglary, 217. So, also, an indictment for bur- glary with violence, must state the person against whom violence has been proved, and the proof must correspond with the allegation. Regina v. Par- fitt, 8 Carrington & Payne, 288. « 1 Hale, P. C. 561 ; 2 East, P. C. 514. ' Wilmot, Law of Burglary, 219 ; 2 East, P. C. 514. 76 BURQLABY. [CHAP. Xin. stated in the indictment.^ It has been held, by two learned judges, that where an indictment charges a burglarious break- ing and entering a dwelling-house, with intent to steal, it need not be particularly stated whose goods they are which the indictment charges the intent to steal.^ When the indictment charges an intent to steal, it is not necessary to prove an actual stealing. " If a man," says Hale, " breaks and enters a house with the intent to commit a fel- ony, though he attains not that intent, but takes or steals nothing, this is burglary." ^ And Coke, in his definition of burglary, expressly says, "whether his felonious purpose be executed or not." * 1. Indictment for burglary and larceny? The jurors, etc., upon their oath present, that C. D. late of B. in the county of S., laborer, on the first day of June in the year of our Lord , about the hour of eleven of the clock in the night of the same day, with force and arms, at B. aforesaid, in the county aforesaid, the dweUing-house of E. F. there situate, feloniously and burglariously did break* and enter, with intent the goods and chattels ® in the same dwell- ing-house then and there being, feloniously and burglariously to steal, take, and carry away, and then and there, with force ' Eex V. Thompson, 2 East, P. C. 515. ' Kegina v. Clarke, 1 Carrington & Kirwan, 421. See also Kegina v. Lawes, 1 Carrington & Kirwan, 82. » 1 Hale, P. C. 562 ; Dyer, 99 ; Staundforde, P. C. 30. * Coke, 3 Inst. 63. ' This and the nine following precedents are taken from Wilmot'a Digest of the Law of Burglary, 237, 248. ' The prisoner was indicted for having burglariously broken and entered the house of the prosecutor in the night time, with intent to steal the " goods and chattels " therein. The jury found that he broke and entered with intent to steal mortgage deeds. It was held, that being subsisting securities for the payment of money, mortgage deeds are choses in action, and as such were improperly described as goods and chattels. Regina v. Powell, 2 Denison, C. C. 403 ; 5 Cox, C. C. 396 ; 14 Eng. Law and Eq. Keps. 515. CHAP. XIII.] BUB6LAK7. 77 and arras, one tea-pot, of the value of ten dollars, one sugar basin, of the value of fifteen dollars, and six teaspoons, of the value of two dollars each, of the goods and chattels of one J. N., in the same dwelling-house then and there being found, then and there in the same dwelling-house feloniously and burglariously did steal, take, and carry away ; against the peace, etc., and contrary to the form of the statute, etc. 2. For burglary, hy breaking but of a house. The jurors, etc., upon then* oath present, that C. D. late of B. in the county of S., laborer, on the first ^ay of June in the year of our Lord , about the hour of eleven of the clock in the night of the same day, with force and arms, at B. aforesaid, in the county aforesaid, being in the dwelling-house of E. F. there situate, one watch, of the value of one hundred dollars, six table-spoons, of the value of four dollars each, and twelve teaspoons, of the value of two dollars each, of the goods and chattels of one J. N., in the same dwelling-house then and there being found, then and there feloniously did steal, take, and carry away. And that the said C. D. being so as afore- said, in the said dwelling-house, and having so committed the felony aforesaid, in manner and form aforesaid, therein afterwards, to wit, about the hour of twelve of the clock in the night of the same day, with force and arms, at B. afore- said, in the county aforesaid, feloniously and burglariously did break out of the same dwelling-house. And the same goods and chattels then and there feloniously and burglari- ously did steal, take, and carry away ; contrary to the form of the statute, etc., and against the peace, etc. 3, For burglary and la/rceny and assault, with intent to murder. The jurors, etc., upon their oath present, that C. D. late of B. in the county of S., laborer, on the first day of June in the year of our Lord , about the hour of ten of the clock in the night of the same day, with force and arms, at B. afore- said, in the county aforesaid, the dwelling-house of one J. N. 7* 78 BTJEGLARY. [CHAP. XIII. there situate, feloniously and burglariously did break and enter, with intent the goods and chattels of one E. O., in the said dwelling-house then and there being, then and there feloniously and burglariously to steal, take, and carry away, and then and there in the said dwelling-house, two candle- sticks, of the value of three dollars each, one silver tankard, of the value of fifty dollars, and one silver pitcher, of the value of one hundred dollars, of the goods and chattels of the said R. O., in the said dwelling-house then and there being found, then and there feloniously and burglariously did steal, take, and carry away. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said J. S., then and there, in the said dwelling-house then being, upon the day and at the hour aforesaid, in and upon the said J. N., in the said dwelling-house then and there being, unlawfully, mali- ciously, and feloniously did make an assault, with intent the said J. N. then and there feloniously, wilfully, and of his malice aforethought, to kill and murder; against the peace, etc., and contrary to the form of the statute in such case, etc. 4. For burgla/ry, with violence. The jurors, etc., upon their oath present, that C. D. late of B. in the county of S., laborer, on the first day of June in the year of our Lord , about the hour of eleven of the clock in the night of the same day, with force and arms, at B. aforesaid, in the county aforesaid, the dwelling-house of one J. N. there situate, feloniously and burglariously did break and enter, with intent to commit felony, and that the said C. D.'in the said dwelling-house then being, in and upon the said J. N., in the said dwelling-house then being, then and there unlawfully, maliciously, and feloniously did make an assault, and the said J. N., in and upon the right thigh of the said J. N. then and there unlawfully, maliciously, and feloni- ously did stab, cut, and wound,i with intent to do unto the ' It is not necessary to state the instrument or means by whicli the injury- was inflicted. Kex v. Briggs, 1 Moody, C. C. 318. CHAP. XIII.] BURG LAKY. 79 said J. N. some grievous bodily harm ; ^ contrary to the form of the statute in such cases made and provided, and against the peace, etc. 5, For burglary and rape? The jurors, etc., upon their oath present, that John Bell, late of B. in the county of S., laborer, on the first day of June in the year of our Lord , about the hour of twelve of the clock in the night of the same day, with force and arms, at B. aforesaid, in the county aforesaid, the dwelling- house of one Edward Styles there situate, feloniously and burglariously did break and enter, with intent to commit fel- ony, and then and there upon one Lucy Styles, the wife of the said Edward Styles, violently and feloniously did . make an assault, and the said Lucy Styles then and there violently, and against her will, feloniously did ravish and carnally know ; contrary to the form of the statute in such case made and provided, and against the peace, etc. 6. For burglary, with intent to ravish; with a count for burglary, with violence, under St. 7 Wm. 4 and 1 Vict, ch. 86, § 2. The jurors, etc., upon their oath present, that John Clarke, late of B. in the county of S., laborer, on the eighth day of May in the year of our Lord , about the hour of twelve in the night of the same day, with force and arms, at B. afore- said, in the county aforesaid, the dwelling-house of one James Thompson there situate, feloniously and burglariously did break and enter, with intent one Hannah Thompson, the wife ^ " The intent is here inserted," says Wilmot, (Law of Burglary, p. 240, note (a),) " in order that if the burglary should fail, the prisoner might still be found guilty of felony, under the fourth section of 7 Wm. 4 and 1 Vict, ch. 85. ' On this count, if the evidence of actual rape should fail, but the jury should be satisfied of the intent, the defendant could be convicted of burglary. 80 BUEGLABY. [CHAP. XHI. of the said James Thompson, violently, and against her will, feloniously to ravish and carnally know; contrary to the form of the statute in such case made and provided, and against the peace, etc. And the jurors aforesaid, upon their oath aforesaid, do fur- ther present, that the said John Clarke, on the day and year aforesaid, at B. aforesaid, in the county aforesaid, having so burglariously as aforesaid broken and entered the said dwell- ing-house of the said James Thompson, then and there upon the said Hannah Thompson, in the said dwelling-house then and there being, wilfully, unlawfully, and maliciously did make an assault, and the said Hannah Thompson then and there did strike and beat; contrary to the form of the statute in such case made and provided, and against the peace, etc. 7. For burglary and larceny, at common law, by breaking into a parish church ; with a count upon the St. 7 & 8 Geo. 4, ch. 29, for sacrilege, in breaking out of a church after the committal of larceny therein. The jmrors, etc., on their oath present, that Michael Wil- son, late of B. in the county of S., laborer, on the first day of June in the year of our Lord , about the hour of one of the clock in the night of the same day, with force and arms, at B. aforesaid, in the county aforesaid, a certain church there situate, that is to say, the parish church of B. aforesaid, feloni- ously and burglariously did break and enter, and one pair of candlesticks, of the value of twenty dollars, and one com- munion dish, of the value of fifty dollars, of the goods and chattels of Henry Jackson and others, being parishioners of B. as aforesaid, in the said church then and there being found, then and there feloniously and burglariously did steal, take, and carry away ; against the peace, etc., and contrary to the form of the statute in such case made and provided. And the jurors aforesaid, upon their oath aforesaid, do further pre- sent, that the said Michael Wilson on the day and year afore- said, at B. aforesaid, in the county aforesaid, about the hour CHAP. Xm.] BURGLARY. 81 of one of the clock in the night of the same day, in the said parish church of B. then and there being, and having then and there committed the felony aforesaid, then and there feloniously and sacrilegiously did break out of the said church ; contrary to the form of the statute in such case made and provided, and against the peace, etc. 8. For being in a dwelling-house with intent to commit fel- ony, and breaking out contrary to the St. 7 && S Geo. 4, ch. 29, § 11. The jurors, etc., upon their oath present, that C. D. late of B. in the county of S., laborer, on the first day of June in the year of our Lord , between the hours of nine of the clock at night and six in the morning,^ that is to say, about the hour of eleven of the clock in the night of the same day, with force and arms, at B. aforesaid, in the county aforesaid, was unlawfully in the dweUing-house of one T. L. there situate, with intent to commit felony. And that the said C. D. being so as aforesaid in the said dwelling-house on the same day and year aforesaid, afterwards, to wit, between the hours of nine of the clock at night and six in the morning, to wit, about the hour of eleven of the clock in the night of the same day, then and there feloniously and burglariously did break out^ of the said dwelling-house of the said T. L. ; contrary to the form of the statute in such case made and provided, and against the peace, etc. 9. For burglary, with intent to commit felony, laying also burglary with violence.^ The jurors, etc., upon their oath present, that "William • This precedent slightly differs from the preceding one, inasmuch as it states the time with greater latitude. See, however, ante, p. 66, and Wad- dington's case, 2 East, P. C. 513 ; The State v. Mather, N. Chipman, 32. ^ An indictment alleging that the prisoner " did break to get out," or " did break and get out," is bad, the words of the statute being " break out." Kex V. Compton, 7 Carrington and Payne, 139. ' On this precedent the defendant may be found guilty, either of burglary 82 . , BTJEGLAKT. [CHAP. XIII. Jones, late of B., in the county of S., laborer, on the first day of June in the year of our Lord , at B. aforesaid, in the county aforesaid, between the hours of nine of the clock at night and six of the clock in the morning, that is to say, abotit the hour of ten of the clock in the night of the same day, with force and arms, at B. aforesaid, in the county aforesaid, the dwelling-house of one Richard Hughes there situate, feloni- ously and burglariously did break and enter, with intent to commit felony. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said William Jones, so being in the said dwelling-house of the said Richard Hughes as aforesaid, at the day and hour aforesaid, upon one Charles Price, in the said dwelling-house then being, then and there unlawfully, wilfully, and maliciously did make an assault, and the said Charles Price did then and there stab and cut, with intent the said Charles Price then and there to disable ; contrary to the form of the statute in such case made and provided, and against the peace, etc. 10. Burglary, laying an accessory before and after the fact?- Inquiratur pro DominS. ReginS, quod cfim J. H. nuper de H. in comitatu praedicto, yeoman, decimo die Mali anno Reginas Eliz., etc., decimo quarto domum mansionalem cujus- dam P., arraigeri apud H., praedictum in comitatu praedicto circa horam decimam in nocte ejusdem diei, felonic^ et bur- glaritSr fregit et intravit, et quadraginta libras in pecuniis numeratis in quMam cistS, ad tunc in domo prsedicti exis- tentes, de bonis et cataUis pr^dicti P., apud H., prEedictum in comitatu praedicto ad tunc et ibidem inventis, felonicS cepit et asportavit contrS, pacem dictae Dominae Reginse, et si qui- ■with Tiolence, of simple burglary, of felony by stabbing, with intent to dis- able, or of a common assault. ' Crompton's Justice, 178, a, (ed. 1606). The edition of Crompton, pub- lished in 1583, does not contain the words " felonicfe et burglariter" before " fregit et intravit." They are, however, to be found in the edition published in 1606. This precedent does not contain the words " vi et armis," as do other of his precedents of indictments for burglary. CHAP. XIII.] BURGLARY. 83 dam Christophertis G., nuper de H., praedicto, in comitatu Somerset, yeoman, ante feloniam prsedictam, per ipsum J. H., in formS, praEdictS, factam at perpetratam, videlicit, sexto die Maii, anno decimo quarto supradicto, eundem J. H., apud H., praedictum in comitatu praedicto, ad feloniam prEedictam in formS. prsedictS, sic faciendam felonic^ excitavit, abettavit et procuravit, contr&i pacem, etc. Et si quidam Joannes R., nuper de C, in comitatu praedicto, yeoman, sciens praefa-tum J. H., feloniam praedictam, in formS. praedictS sic fecisse et per- petrasse, eundem J. H. dicto decimo die Maii, anno supr&dicto post feloniam praedictam per ipsum J. H., sic factam et per- petratam, eundem J. H., apud H. praedictum in comitatu pr^dicto felonic^ receptavit, confortavit, et hospitavit, con- tra pacem dictse Dominse E,egin«, etc. 11. For having in possession implements of burglary?- That C. D. late of B. in the county of S., laborer, on the first day of June in the year of our Lord , at B. afore- said, in the county aforesaid, knowingly did have in his pos- session certain implements, that is to say, ten skeleton keys, adapted and designed for forcing and breaking open the dwelling-house of one E. F. there situate, with intent then and there, in the night time of the said day, the dwelling-house of the said E. F. there situate, feloniously and burglariously to break and e,nter, and then and there, in the night time as aforesaid, the goods and chattels of the said E. F., in the same dwelling-house then and there being, feloniously and burglariously to steal, take, and carry away ; the said C. D. then and there well know^ing the said implements to be adapted and designed for the purpose aforesaid, with intent then and there feloniously and burglariously to use and em- ploy the said implements for the purpose aforesaid ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. > See Regina v. Oldham, 2 Denison, C. C. 472 ; 5 Cox, 551 ; 3 Carrington & Kirwauj-'ld Eng. Law and Eq. Keps. 668. 84 BUEGLAKT. [CHAP. XIII. 12. For being found bynight armed, with intent to break into a dwelling-house, and commit a felony therein?- That C. D. late of B. in the county of S., laborer, on the first day of June in the year of our Lord , about the hour of eleven of the night of the same day, at B. aforesaid, in the county aforesaid, was found in the night time as afore- said, then and there being armed with a dangerous weapon, to wit, a gun, with intent then and there, in the night time as aforesaid, to break and enter the dwelling-house of one E. F. there situate, and then and there, in the night time as afore- said, in the said dweUing-house, feloniously to steal, take, and carry away the goods and chattels and personal property of the said B. F., in the said dwelling-house then and there being ; against the peace, etc., and contrary to the form of the statute in such case made and provided. ' Lord Campbell's Acts, by Greaves, p. 73. CHAPTER XIV. CHEATS AT COMMON LAW, AND STATUTORY CHEATS BY FALSE PRETENCES. " It seems to be the fair result of the cases," says Gabbett, " that a cheat, in order to be indictable at common law, must have been public in its nature, by being calculated to defraud numbers, or deceive or injure the public in general; or by affecting the public trade or revenue, the public health, or being in fraud of public justice, etc. And the other cases to be found in the books, of cheats apparently private, which have been yet held to be indictable at common law, will, upon examination, appear to involve considerations of a pub- lic nature also, or else to be founded in conspiracy or for- gery." i_ Under this head may also be classed the offence of selling unwholesome food, which was indictable by the com- mon law, and by the statute of 51 Henry 3, ch. 6.^ Where the indictment charged the defendant, a baker, with supplying to the military asylum at Chelsea, as and for good, whole- some, household loaves, divers loaves mixed with certain 1 1 Gabbett, Crim. Law, 205. See Rex v. Wheatley, 2 Burrow, 1125; Eex V. Lara, 6 Term Kep. 465 ; 2 Leach, C. C. (4th London ed.), 647 ; Kex V. Bryan, 2 Strange, 866 ; 2 East, P. C. 819 ; Rex v. Young, 3 Term Rep. 98 ; 1 Leach, C. C. (4th London ed.), 505 ; Cross v. Peters, 1 Greenleaf, (Ben- nett's ed.) 343, 350; Commonwealth v. Hearsey, 1 Mass. (Rand's ed.), 137,- Commonwealth v. Warren, 6 Mass. (Rand's ed.), 72 ; The People v. Stone, 9 Wendell, 182; The State v. Justice, 2 Devereaux, 199; The State v. Stroll, 1 Richardson, 244 ; Hartmann v. The Commonwealth, 5 Barr, 60. ' 2 East, P. C. 82l'; Eex v. Treeve, 2 East, P. C. 821 ; 3 Greenleaf, Ev. §85. 8 86 CHEATS AT COMMON LAW. [CHAP. XIV. noxious and unwholesome materials, not fit for the food of man, which he well knew to be so at the time he so supplied them, it was held, on motion in arrest of judgment, that the indictment was sufficient, though it did not show what the noxious materials were ; because if this exception were good, then if death had ensued, the defendant could not be indicted until it was ascertained what the particular ingredients were ; and as to the second exception, that the indictment did not state that the defendant intended to injure the children's health, the principle is a ianiversal one, that where a man is charged with doing an injurious act, of which the probable consequence may be highly injurious, the intention is an inference of law resulting from doing the act.^ And it seems that the indictment must charge, that the defendant delivered the unwholesome food as an article for the food of man.^ To cheat a man of his money or goods, by using false weights or measures, has been indictable at common law from time immemorial.^ In addition to this, the statute 33 Henry 8, ch. 1, which has been adopted and considered as a part of the common law in some of the United States, and its provisions have been either recognized as common law,* or expressly enacted, in nearly all of them, was directed, as appears from its title and preamble, against such persons as received money or goods by means of counterfeit letters or privy tokens in other men's names. The statute 33 Henry 8, ch. 1, extended only to cases where the money, etc., was ' Rex V. Dixon, 4 Campbell, 12 ; 3 Maule & Selwyn, 15. ' Rex V. Haynes, 4 Maule & Selwyn, 214. ' 1 Gkibbett, Crim. Law, 201 ; 3 Greenleaf, Ev. § 86 ; Commonwealth v. Warren, 6 Mass. (Rand's ed.), 72. This is also a cheat by false token or pre- tence, when it is a cheat at all, for the cheat consists not merely in using another than the standard weight or measure, but in pretending expressly, or by implication, that it is a different weight or measure from what it is in fact Report of the Massachusetts Criminal Law Commissioners, Tit. Gross Cheats, § 7, note (g). * Commonwealth v. Warren, 6 Mass. (Rand's ed.), 72 ; The People v. Johnson, 12 Johnson, 292. But not in Pennsylvania. Respublica v. Powell, 1 Dallas, 47. CHAP. XIV.] FALSE PRETENCES. 87 obtained by means of a false token or counterfeit letter in the name of another ; but this proviision not being deemed suffi- ciently extensive, the statute 30 Geo. 2, ch. 24, was made, for the purpose of including all false pretences whatsoever. The substantial provisions of this statute have been incorporated into the legislation of many of the United States.^ The doc- trine has been expressly laid down in many cases, both Eng- lish and American, and may now be regarded as the prevail- ing and established construction of these statutes, that a cheat is not indictable, unless the false pretence or token be such as might deceive a person of ordinary prudence and caution.^ Under the recent statutes, as well as under the prior acts, the indictment should not only chfirge that the defendant " unlawfully, knowingly ,2 and designedly, did falsely pretend," ^ The statute of Connecticut embraces the provisions of the statutes 33 Hen. 8, 32 Geo. 2, and 62 Geo. 3 ; and the English decisions under those statutes are applicable to cases arising under the Connecticut statute. The State V. Kowley, 12 Connecticut, 101. In Massachusetts, the first section of St. 1815, ch. 136, was a copy of St. 30 Geo. 2, ch. 24. This sectiorf was revised and combined with some provisions in relation to other similar offences, in the Rev. Sts. ch. 126, § 32. Morton, J., Commonwealth v. Drew, 19 Pickering, 179, 182. By St 1854, ch. 12, § 1, it is enacted, that " The provisions of the Rev. Sts. ch. 126, § 32, shall not apply to any person for obtaining, by way of purchase from another, goods, wares, merchandise, or other property, by means of any false pretence relating to such purchaser's means or ability to pay, when, by the terms of such purchase, payment for the same is not to be made upon or before the delivery of the property so obtained, unless such pretence shall be made in writing, and signed by the party to be charged." ^ Rex V. Wheatley, 2 Burrow, 1228; Rex v. Young, 3 Term Rep. 98; Bex V. Goodhall, Russell & Ryan, C. C. 461 ; The People v. Galloway, 17 Wendell, 540 ; The People v. Williams, 4 Hill, (New York,) 9 ; The People V. Miller, 14 Johnson, 371 ; The People u. Johnson, 12 Johnson, 292; The People V. Lambert, 9 Cowen, 588 ; The People v. Babcock, 7 Johnson, 204 ; The People v. Stetson, 4 Barbour, 151 ; The State v. Mills, 17 Maine, 211 ; Cross V. Petersj 1 Greenleaf (Bennett's ed.), 343, 350; Commonwealth v. Drew, 19 Pickering, 179; Commonwealth v. Call, 21 Pickering, 515; Com- monwealth V. Wilgus, 4 Pickering, 177; The State v. Simpson, 3 Hawks, 620 ; Burrow v. The State, 7 English, (Arkansas,) 65 ; Report of the Massa- chusetts Criminal Law Commissioners, -Tit. Gross Cheats, § 7, note (g). ' In Massachusetts, it has been held, that as the word "knowingly " is not in the Rev. Sts. ch. 126, § 32, an indictment which does not contain that 88 FALSE PRETENCES. [CHAP. XIV. etc., but it should proceed to charge also, that the defendant did "unlawfully, knowingly, and designedly obtain," etc.; and the allegation of the intent to cheat should follow the charge of obtaining the money, goods, etc.^ The next question which arises with respect to the form of indictment' under the recent statutes is, whether it is suffi- cient to state that the cheat was effected by means of certain false pretences, or whether it is essential that the false pre- tences should be specially set forth. And this question may be decided by a reference to the cases which were determined upon the construction of the former statutes, which are in pari materia, as weU as by a reference to the later cases. Where the defendant was convicted under 33 Hen. 8, ch. 1, for procuring a promissory note by false tokens, the judgment was arrested, because the indictment did not specify the false tokens.^ And where the defendant, who was indicted under 30 Geo. 2, ch. 24, for obtaining a sum of money by false pre- tences, the judgment was reversed upon a writ of error, on the ground, also, that the indictment did not state what the false pretences were.^ The reasons which appear to have governed these decisions were, that the tokens in the one case, and the pretences in the other, were of the very essence of the crime; and that the defendant, therefore, should in each have had notice of them, so as to prepare for his de- fence; and in order, also, that the court should be thereby enabled to judge whether the tokens or pretences were within word, but follows the words of the statute, is sufficient on motion in arrest of judgment. Commonwealth i;. Hulbert, 12 Metcalf, 446. And so in Eng- land. Regina v. Bowen, 13 Queen's Bench Rep. 790 ; 3 Cox, C. C. 483, overruling Kegina v. Henderson, 2 Moody, C. C. 142 ; Carrington & Marsh- man, 328; and Regina v. Gruby, 1 Cox, C. C. 249. ' 1 Gabbett, Crim. Law, 212. And see Rex v. Rushworthy, Russell & Ryan, C. C. 317. ' Rex V. Munoz, 2 Strange, 1127; more fully reported in 7 Modem Rep. 315. • Rex V. Mason, 2 Term Rep. 581 ; 1 Leach, C. C. (4th London ed.), 487 ; 2 East, P. C. 837 ; 1 Gabbett, Crim. Law, 213 ; 1 Starkie, Crim. PI. (Lon- don ed. 1828), 95 ; Burrow v. The ^tate, 7 English, (Arkansas,) 65. The district attorney is not bound to furnish a bill of particulars of the fabe pre- tences used by the defendant. The United States v. Ross, 1 Morris, 164. CHAP. XIV.] FALSE PRETENCES. 89 the statute on which the indictment was framed ; and if so, to apply the suitable punishment. And these reasons appear to be equally applicable to the case of an indictment upon the recent statutes. And it has been further held, that when money or other property is obtained by a sale or exchange of property, effected by means of false pretences, such sale or exchange ought to be set forth in the indictment, and that the false pretences should be alleged to have been made with a view to effect such sale or exchange, and by reason thereof the party was induced to buy or exchange, as the case may be.^ But though the false pretences must be specifically stated, it seems to be clear, that no greater certainty or pre- cision can be required than to state them truly, as they were described to the party at the time he was imposed upon.^ Thus, in a case whete an objection was taken, that the wager ' Commonwealth v. Strain, 10 Metcalf, 521 ; The State v. Philbrick, 31 Maine, 491. In Commonwealth v. Strain, Dewey, J., said, "Although the language of the Rev. Sts. ch. 126, § 32, is very broad, yet all will agree that, in' its practical application, the false declaration must be made to a party who has an interest in the matter, and is affected injuriously by the false- hood. We go further, however, and hold, that in a case like the present, where the alleged false pretences were injurioua only by inducing another person to buy the article as to which such false representations were made, such sale, or nffer for sale, must be set out as a part of the facts relied upon, and as a material allegation in the description of the offence. " A recurrence to the reported cases strongly confirms us in the view we have taken of this indictment. In the case of The State v. Mills, 1 7 Maine, 211, the form of the indictment was, that the defendant ' did falsely pretend that a certain horse, which he then and there wished and offered to exchange, was a sound horse,' etc. In Commonwealth v. Stone, 4 Metcalf, 43, the con- tract and sale are set forth. Other similar precedents might be referred to. In one case, however, Eegina i-. Bloomfield, Carrington & Marshman, 537, the form of allegation seems to correspond with the present. In that case no question was raised as to the sufficiency of the indictment, but only upon points ruled by the presiding judge at the trial. In The People v. Gates, 13 Wendell, 311, it was held, that an indictment for obtaining goods by false pretences must contain all the material facts and circumstances, which the public prosecutor would be bound to prove, in order to procure a conviction." ' 1 Gabbett, Crim. Law, 213. And see Commonwealth v. Hulbert, 12 Metcalf, 446. 8* 90 FALSE PRETENCES. [CHAP. XIV. therein mentioned was stated to have been made with a colonel in the army, then at Bath, without setting forth his name, or any other special designation of him, the objection was overruled ; the court considering the charge to be as cer- tain as the nature of the thing would admit, the name of the colonel not being perhaps mentioned at the time the defend- ants spoke of the pretended wager ; and because, if such a wager had been actually depending, it was competent for the defendants to have proved it in their defence, their attention having been sufiiciently called to it by the indictment.^ But it is not necessary to state in what manner the false pretence was calculated to effect, or did effect the obtaining of the money.^ It has been very recently held in England, upon a case reserved, where the defendant was indieted for fraudulently offering a " flash note " in payment, under the pretence that it was a Bank of England note, that instruments need not be set out in an indictment, except where the court could derive assistance from seeing a cppy of it on the record ; as where the case turns on the nature and character of the instrument, as distinguished from its quality of good or bad. In this case. Chief Justice Wilde said, " It is unnecessary to set out the instrument in those cases where it cannot be of any use 'to the court, in order that they may arrive at the conclusion whether it is or is not a valid document. Had it been stated in the indictment as a certain paper purporting to be a good and valid promissory note, and that it was not a good and valid promissory note, it might have been necessary to set it out, in order that the court might have seen whether it was or was not. In this case, the court could not have derived any assistance whatever from setting the paper out ; for all that appears upon the indictment, it might have been nothing but hieroglyphics. The indictment states that it was a cer- tain paper produced by the prisoners which they falsely pre- ' Young V. Rex, 3 Term Kep. 98 ; 2 East P. C. 82, 823 ; 1 Leach, C. C. (4th London ed.), 505 ; 1 Gabbett, Crim. Law, 214. ' Hamilton v. Regina, 9 Queen's Bench Rep. 271 ; 2 Cox, C. C. 11. CHAP. XIV.] FALSE PRETENCES. 91 tended was a good and valid promissory note, whereas it was not. Where the note is required to be set out, something has turned upon the nature of the .note, rendering it necessary that the court should see it." * It is also to be considered, how far it is necessary to make an express and distinct allegation as to the parts of the trans- action which are meant to be charged as false pretences. In Airey's case it was held, that no technical form of words was required for the purpose ; but that it was sufficient if, upon the whole indictment, it appeared that the money or goods, etc., had been obtained by means of the pretence set forth, and that such pretence was false, and within the mean- ing of the statute.^ But in Perrott's case it was decided, that it is not enough for the indictment to allege " that the defend- ant did falsely pretend, etc., by means of which said several false pretences the defendant did obtain," etc., without dis- tinctly ascertaining, by precise averments, which the partic- ular pretence is that is meant to be falsified ; because the word "falsely" does not necessarily import that falsehood pervades the whole allegation, which may be branched out into a number of several matters, some of which are true, and others false ; and the indictment should therefore nega- tive each particular which is meant to be disproved ; as in the case of perjury, where not only the substance of the offence must be charged, but there must be also the proper averments to falsify the matter wherein the perjury is assigned. And Lord Ellenborough is said to -have observed in this case, " that he was at a loss to discover why, in reason, in justice, and in mercy to the party, the charge of obtaining money by false pretences should not be as distinctly ascertained by proper averments, that specifically draw the party's attention to it, as in the case of perjury ; " and " that the convenience of mankind demanded that the charge should be specific, in order that a party should not be distracted amidst the con- • Regina v. Coulson, 1 Temple & Mew, C. C. 332, 335 ; 4 Cox, C. C. 227 ; 1 Denison, C. C. 592; 1 Eng. Law and Eq. Rep. 550, (1850). " Rex V. Airey, 2 East, 30. 92 FALSE PKETBNCBS. [CHAP. XIV. fusion of a multifarious and complicated transaction, parts of which only are meant to be impeached for falsehood." * " Though an indictment for perjury," says Gabbett, " and one for obtaining money, etc., by false pretences, etc., agree, in the manner above mentioned, as to the necessity in each of distinctly negativing the particular matters to be falsi- fied ; yet there is a distinction between these offences, which is to be here particularly noticed ; namely, that though several persons cannot be joined in one indictment for perjury, be- cause the words spoken by one defendant cannot possibly be applied to another as his act in falsely uttering those very words, perjury being, in its nature, a single transaction ; yet in the case of a cheat, if a number of persons are all present acting a different part in the same transaction, or if all join in the relation of a thing as within their own knowledge, they thus obtain a greater degree of credit, and one alone cannot be said to have obtained the money or goods, etc., or de- frauded the prosecutor : and no rule of criminal proceeding is therefore violated by adjudging them guilty of the imposition jointly; and any supposed inconvenience arising from the confounding the evidence as to the several defendants may be obviated ; because, if it affects them differently, the judge who tries them may select the evidence which is applicable to each, and leave their cases separately to the jury."^ And where two persons are jointly indicted, evidence that one of them, with the knowledge, approbation, concurrence, and direction of the other, made the false pretences charged, war- rants the conviction of both.^ All parties who have concurred and assisted in the fraud, may be convicted as principals, though not present at the time of making the pretence and obtaining the money and goods.* 'Rex V. Perrot, 2 Maule & Selwyn, 379; The People v. Haynes, 11 Wendell, 557 ; Amos v. The State, 10 Humphreys, 117; Tyler «. The State, 2 Humphreys, 37 ; The State v. Smith, 8 Blackford, 489 ; 1 Gabbett, Crim. Law, 214. See Commonwealth v. Strain, 10 Metcalf, 521, 522. ' 1 Gabbett, Crim. Law, 214, 215. ' Commonwealth v. Harley, 7 Metcalf, 462. * Regina v. Moland, 2 Moody, C. C. 276. CHAP. XIV.] FALSE PRETENCES. 93 It is necessary to allege who was the owner of the property- alleged to have been obtained by false pretences, or an excuse must be stjited for not making the averment.^ But in New York it has been held, that it is not necessary to state its value.2 It is not necessary to allege that the pretence was made with the intent of obtaining the money, etc., it is suffi- cient to show that the pretence was made, that the money, etc., was obtained thereby, with intent to defraud, and that the pretence was false to the knowledge of the defendant.^ An indictment may aver, that the false pretences were practised upon one person and his money obtained, with intent to defraud another.* So an allegation, that the defend- ant obtained goods of a firm by false pretences made to them, is supported by proof that the defendant made the false pre- tences to their clerk and salesman, who communicated them to one of the firm, and that the goods were delivered to the ^ Sill V. K«gina, 1 Pearce, C. C. 132 ; 16 Eng. Law and Eq. Hep. 375 ; The State v. Lathrop, 15 Vermont, 279 ; The State v. Smith, 8 Blackford, 489 ; Rex v. Martin, 8 Adolphus & Ellis, 481 ; 3 Neville & Perrj', 472 ; Rex V. Norton, 8 Carrington & Payne, 196. In Commonwealth v. Davis, The Monthly Law Reporter, vol. 5, n. s. p. 41, the defendant was indicted for obtaining the money of A. C. by false pretences. A. C. was a married woman, having a husband living, but who had been absent for about three years on the coast of Africa. He supplied her with funds for the support of herself and her family in Boston, and the money obtained of her was part of such remittance. The judge presiding at the trial in the Municipal Court instructed the jury, that if they found at the time of the transaction he had been absent three years, was not intending to return soon, had fixed no time for his return, and had left his wife and family in Boston without other means of support than those supplied by him as above, and sent this money to her to be disposed of as she should choose, without interference or control on his part; and the defendant, in obtaining the money, treated and acted with her as a, feme sole, and obtained it of her as her money, and gave her his notes payable to her ; such facts would be sufficient to sustain the allega- tion that the money was her property. The defendant was found guilty ; but the Supreme Court held otherwise, and set aside the verdict. 'The People v. Stetson, 4 Barbour, 151. ' Hamilton v. Regina, 9 Queen's Bench Rep. 271 ; 2 Cox, C. C. 11. • Commonwealth v. Call, 21 Pickering, 515. But see Rex ti. Lara, 1 Leach, C. C. (4th London ed.), 647. 94 FALSE PRETENCES. [CHAP. XIV. defendant in consequence of those false pretences. To con- vict the defendant on such indictment, it is not necessary to prove that he obtained the goods on his own account, or that he derived, or expected to derive, any personal pecuniary ben- efit therefrom.^ A false pretence actually made to A. in B.'s hearing, whereby money is obtained from B., may be laid as made to B.^ The offence consists in obtaining the money ; and where it was transmitted in a letter, mailed by the defendant's request, in the county of A., but which reached him in the county of B., it was held, that this was an obtaining of the money in the county of A., and that the venue was rightly laid there.^ And where A., residing in Ohio, sent by innocent agents to a iirm of commission-merchants in New York city, forged receipts, purporting to be signed by a certain forwarder in Ohio, acknowledging the receipt by him, from A., of certain goods for and on account of the said firm in New York, upon which A. obtained advances from said firm, it was held, that the crime was committed in New York, although the defend- ant had never been in New York, and the receipts were drawn and signed in Ohio.* As to the evidence upon trials for this offence, it is to be observed, that the offences must not only be distinctly set out, but must.be proved as laid, without any substantial variance. And, therefore, where the indictment stated that the defendant pretended that he had paid a sum of money into the Bank of England ; and the evidence was, that the defendant, upon the occasion referred to in the indictment, had said, " the money has been paid ' at the bank,' " and not that he had paid it, this was held to be a fatal variance.^ But it is not necessary that • Commonwealth v. Harley, 7 Metcalf, 462 ; Commonwealth v. Call, 21 Pickering, 515. ' Regina v. Dent, 1 Carrington & Kirwan, 249. ' Kepna v. Jones, 1 Denison, C. C. 551 ; 1 Temple & Mew, C. C. 270 ; 4 Cox, C. C. 198 ; 1 Eng. Law and Eq. Rep. 533. See also The People v. GrifEn, 2 Barbour, 427. ' The People v. Adams, 3 Denio, 190 ; 1 Comstock, 173. ' Rex V. Plestow, 1 Campbell, 494. CHAP. XIV.] FALSE PRETENCES. 95 all the false pretensions or allegations set forth in the indict- ment should be proved.^ And it seems that it will be suffi- cient if any entire allegation of pretence and falsehood be sustained, provided that it shall also appear that the cheat was effected by means of such falsehood ; for it is clear, that an attempt to obtain money by false pretences, though it may be indictable upon common law principles,^ is neither within the recent statutes, nor the prior statutes relative thereto.^ 1. Indictment at common law, for selling by false scales.'^ The jurors, etc., upon their oath present, that heretofore, to wit, on the first day of June in the year of our Lord , and from thence until the taking of this inquisition, C. D. late of B. in the county of S., shopkeeper, did use and exercise the trade and business of a shopkeeper, and during that time did deal in the buying and selling by weight of divers goods, wares, and merchandises, to wit, at B. aforesaid, in the county aforesaid, and that whilst the said C. U. used and exercised his said trade and business, to wit, on the said first day of June in the year of our Lord , and on divers other days and times between that day and the day of taking of this inqui- sition, at B. aforesaid, in the county aforesaid, did knowingly. ' Rex V. Hill, Russell & Ryan, C. C. 190; Common wealth v. Morrill, 8 Gushing, 571 ; Rex v. Adey, 7 Carrington & Payne, 140, 141 ; Britt v. The State, 9 Humphreys, 31 ; The State v. Dunlap, 24 Maine, 77 ; The State u. Mills, 17 Maine, 211 ; 1 Gabbett, Crim. Law, 215. f 1 Gabbett, Crim. Law, 19; Archbold, Crim. PI. (London ed. 1853,) 2. The nature of the attempt must be set forth in the indictment, with rea- sonable certainty. And where the indictment stated that the defendant " did unlawfully attempt and endeavor fraudulently, falsely, and unlawfully to obtain from an insurance company a large sum of money, to wit, the sum of £22. 10s., with intent thereby then and there to cheat and defraud the said company," etc. ; this was held insufficient. Regiua o. Marsh, 1 Denison, C. C. 505 ; 3 Cox, C. C. 570 ; 1 Temple & Mew, C. C. 192. ' 1 Gabbett, Crim. Law, 215. * Matthews, Crim. Law, 472. An indictment for selling by false weights and measures may readily be framed from this precedent. 96 FALSE PRETENCES. [CHAP. XIV. unlawfully, wilfully, and publicly keep in a certain shop there, wherein the said C. D. did so as aforesaid carry on his said trade and business, a certain false pair of scales for the weigh- ing of goods, wares, and merchandises by him sold and dis- posed of in the way of his said trade and business; which said scales were then and there, by artful arid deceitful ways and means, so made and constructed as to cause the goods, wares, and merchandises weighed therein and sold by the said C. D. as aforesaid, to appear of much greater weight than the real and true weight thereof, to wit, by one eighth part of such apparent weight ; and that the said C. D. on the said first day of June in the year of our Lord , at B. aforesaid, in the county aforesaid, the said C. D. then and there well knowing the said scales to be false as aforesaid, did know- ingly, wilfully, and fraudulently sell and utter to one J. N.^ certain goods in the way of the said trade of the said C. D., to wit, a large quantity of sugar, weighed in and by the said false scales, as and for twenty pounds weight of sugar, whereas, in truth and in fact, the weight of the said sugar so. sold and falsely weighed as aforesaid, was short and deficient of the said weight of twenty pounds, to wit, by one eighth part of the said weight of twenty pounds, to wit, at B. afore- said, in the county aforesaid ; against the peace of said Com- monwealth. 2. Obtaining goods by false pretences. The jurors, etc., upon their oath present, that C. D. late of B. in the county of S., laborer, on the first day of June in the year of our Lord , at B. aforesaid, in the county afore- said, feloniously,^ unlawfully, knowingly, and designedly did ''■ Alleging the sale to have been made to " divers citizens to the jurors afore- said unknown," has been held to be sufficient Rex v. Gibbs, 1 Strange, 497. In Tennessee, it has been held, that it is not sufficient to charge that the sale was made to " divers persons." The person to whom the sale was made, must be named. The State v. Woodson, 5 Humphreys, 55. ^ This averment is proper in those of the United States, where the ofifence CHAP. XIV.] FALSE PRETENCES. 97 falsely pretend to E. R that the said C. D. was then sent by J. N. to the said E. F. for a silver tankard, by means of which said false pretence the said C. D. did then and there unlaw- fully, knowingly, and designedly, fraudulently obtain from the said B. F. one silver tankard, of the value of one hundred dollars, of the goods and chattels of the said E. F., with intent then and there to cheat and defraud the said E. Fl of the same. "Whereas, in truth and in fact, the said C. D. was not then and there sent by the said J. N. to the said E. F. for a silver tankard, as the said C. D. then and there well knew ; against the peace, etc., and contrary to the form of the statute in such case made and provided. 3. For obtaining money on a false representation respecting the value and history of a horse, which the prisoners sold to the prosecutor} The jurors, etc., upon their oath present, that heretofore, to wit, at the time of the commission of the offence hereinafter in this count mentioned, one E,. J. T. was desirous of pur- chasing and providing himself with a horse which should be sound and quiet in harness, and that J. P. B. late of the par- ish of St. James, Westminster, in the county of Middlesex, and within the jurisdiction of the said court, laborer, and J. P. late of the same place, laborer, well knowing the premises, and that the said R. J. T. would be ready to purchase of and from any respectable and responsible person such horse as aforesaid ; and the said J. P. B. and J. P. having in their pos" session a certain horse, much under the value of three hundred dollars, to wit, of the value of one hundred dollars and no more, and then being unsound, and the said J. P. B. and J. P. wickedly and fraudulently intending to persuade the said R. J. is a felony. An indictment which alleged that the defendant unlawfully, knowingly, and designedly diA feloniously pretend, etc.,, was held bad. Kex. V. Walker, 6 Carrington & Payne, 657. * 3 Cox, C. C. Appendix, p. xlix. a 98 FALSE PRETENCES. [CHAP. XIV. T. to deposit with them, the said J. P. B. and J. P., a large sum of money upon the delivery of the said horse to the said E,. J. T. for trial and approval thereof, and under color of their readiness and willingness to return the said money, subject to the deduction of fifty doUars, in case the said horse should not be approved of by the said R. J. T,, to cheat and defraud the said R. J. T. of the same money so to be deposited as aforesaid, on the seventh day of September in the year of our Lord , at the parish aforesaid, in the county aforesaid, and within the jurisdiction of the said court, did produce the said horse to the said R. J. T. and did then and there unlaw- fully, knowingly, and designedly, falsely pretend to the said R. J. T. that the said J. P. B. then was in the wool business in the city of London ; that the said horse then belonged to a brother of the said J. P. B. then abroad ; that the said J. P. B. then had to sell the said horse for his said brother ; that the said horse was then perfectly sound and quiet in har- ness, and had then been used to run with another horse in harness, which had been sold to a colonel. By means of which said false pretences the said J. P. B. and J. P. did then and there unlawfully, knowingly, and designedly, fraudulently obtain of and from the said R. J. T. one piece of paper of the value of one cent, of the goods and chattels of the said R. J. T., and one order for the payment of money, to wit, for the payment of the sum of three hundred dollars, and of the value of three hundred dollars, then being the property of the said R. J. T. with intent then and there to cheat and defraud him of the said goods, chattels, and order respectively, the said sum of money payable and secured by and upon the said order being then due and unsatisfied to the said R. J. T. the proprietor of the said order ; whereas, in truth and in fact, the said J. P. B. was not then in the wool trade in the city of London ; and whereas, in truth and in fact, the said horse did not belong to a brother of the said J. P. B. who was abroad ; and whereas, in truth and in fact, the said J. P. B. had not then to sell the said horse for his said supposed brother-; and whereas, in truth and in fact, the said horse was not then sound or quiet in harness, and had not then been used to run with another CHAP. XIV.] FALSE PRETENCES. 99 horse which had been sold to a colonel ; all of which said false pretences the said J. P. B. and J. P. at the time of mak- ing thereof as aforesaid, well knew to be false ; to the great damage and deception of the said R. J. T., contrary to the form of the statute in such case made and provided, and against the peace, etc. Second Count. — And the jurors aforesaid, upon their oath aforesaid, do further present, that the said J. P. B. and J. P. well knowing as in the first count mentioned, and having in their possession the said horse in the first count mentioned, and being persons of no credit or responsibility, but of fraudu- lent and deceitful minds and dispositions, and intending to cause it to appear to, and be believed by, the said R. J. T. that the said J. P. B. was a person of substance and of good credit, and was a bond fide seller of the said horse for another, and a respectable party, and was a responsible person, whose war- ranty of the said horse was of value, and would be available to any purchaser of' the said horse, and to induce the said R. . J. T. to purchase the said horse of the said J. P. B. and J. P. upon the faith and credit of the warranty of the said horse by the said J. P. B. as such responsible party, for a large sum of money, to wit, the sum of three hundred dollars, and to cheat and defraud the said R. J. T. of the same, and afterwards, to wit, on the same day and year aforesaid, at the parish afore- said, in the county aforesaid, and within the jurisdiction of the said court, did produce the said horse to the said R. J. T. and offer to sell the same to the said R. J. T., to wit, for the sum of three hundred dollars, with a warranty by the said J. P. B. of the said horse being then sound and quiet in har- ness; and the said J. P. B. and J. P. did then and there deliver such warranty as aforesaid to the said R. J. T., and did then and there unlawfully, knowingly, and designedly, falsely pretend to the said R. J. T. that the said J. P. B. then was in the wool business in the city of London, that the said horse then belonged to a brother of the said J. P. B. who was then abroad, and that the said J. P. B. then had to sell the said horse for his said brother, by means of which said false pretences, in this count mentioned, the said J. P. B. and J. P. 100 FALSE PRETENCES. [CHAP. XIV. did, then and there unlawfully, knowingly, and designedly, fraudulently obtain of and from the said R. J. T. one piece of paper of the value of one cent, of the goods and chattels of the said R. J. T., and one order for the payment of money, to wit, for the payment of the sum of three hundred dollars, then being the property of the said R. J. T., with intent then and there to cheat and defraud the said R. J. T. of the said last-men- tioned goods, chattels, and order respectively, the said sum of money payable and secured by and upon the said last-men- tioned order, being then due and unsatisfied to the said R. J. T. the proprietor thereof; whereas, in truth and in fact, the said J. P. B. was not then in the wool business in the city of Lon- don, nor did the said horse belong to a brother of the said J. P. B. who was then abroad ; and whereas, in truth and in fact, the said J. P. B. had not then to sell the said horse for his said supposed brother ; all of which said several false pre- tences, in this count mentioned, the said J. P. B. and J. P. at the time of the making thereof as aforesaid knew to be false ; to the great damage and deception of the said R. J. T., and contrary to the form of the statute in such case made and provided, and against the peace, etc. 4. For obtaining money by falsely pretending that certain prop- erty of the defendant was unincumbered, and that he him- self was free from debts and liabilities} The jurors, etc., upon their oath present, that before the commission of the offence hereinafter mentioned, one R. H. C. was possessed of and entitled to a certain reversionary interest, to wit, a certain reversionary interest of and in and to one third of a certain sum of ten thousand doUaxs, three per cent, annuities, expectant on the death of one R. C, and that the said R. H. C. before the commission of the offence hereinafter mentioned, to wit, on the first day of November, in the year of our Lord — '■ — , duly executed a certain mortgage of the said reversionary interest to one ' 5 Cox, C. C. Appendix, p. xc. CHAP. XIV.] FALSE PRETENCES. 101 R. S. H. H., as and for and by the way of security to the said R. S. H. H., for the repayment to him of a certain sum of money, to wit, the sum of one thousand dollars and interest, and that the said R. H. C. afterwards, and before the commission of the said offence, to wit, on the twenty-fifth day of October, in the year of our Lord , charged the said reversionary interest, to which he was so entitled as aforesaid, with the payment of a certain other sum of money, to wit, the sum of five hundred dollars and interest. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said R. H. C. late of the parish of Saint Pancras, in the county of Middlesex, gentleman, well knowing the premises, and contriving and intending to cheat and defraud, on the thirteenth day of March, in the year of our Lord , at the parish aforesaid, and within the jurisdiction of the said court, did apply to and request one J. P. to advance and lend to him, the said R. H. C, a certain sum of money, to wit, the sum of two hundred dollars, and did then and there unlaw- fully and knowingly falsely pretend to the said J. P. that the said R. H. C. had not then incumbered his said reversionary interest, and that the said R. H. C had not borrowed any money from any other person on the security of the said reversionary interest of the said R. H. C. ; by means of which said false pretences, the said R. H. C. did then and there unlawfully, knowingly, and designedly, fraudulently obtain of and from the said J. P. one order for the payment of money, to wit, for the payment and of the value of two hundred dol- lars, and one piece of paper, of the value of one cent, and the sum of two hundred dollars in money, of the property, goods, chattels, and moneys of the said J. P., with intent then and there to cheat and defraud him of the same ; -whereas, in truth and in fact, the said R. H. C, at the time he so' falsely pre- tended as aforesaid, had incumbered, and well knew that he had incumbered, his said reversionary interest ; and whereas, in truth and in fact, the said R. H. C, at the time he so falsely pretended as aforesaid, had borrowed and well knew that he had borrowed, certain money from certain persons, other than the said J. P., upon the security of the said reversionary inter- 9* 102 FALSE PKETBNCES. [cHAP. XIV. est, to wit, the said sum of one thousand dollars, of and from the said R. S. H. H., and the said other sum of five hundred dollars of and from one J. J. ; contrary to the form of the statute in such case made and provided, and against the peace, etc. Second Count., — And the jurors aforesaid, upon their oath aforesaid, do further present, that the said R. H. C. being pos- sessed of and entitled to a reversionary interest in a certain sum of ten thousand dollars, three per cent, annuities, expect- ant upon the decease of one R. C, did apply to and request ■ the said J. P. to advance and lend money to him the said R. H. C, to wit, on the thirty-first day of May in the year of our Lord , at the parish aforesaid, and within the jurisdiction of the said court, and did then and there unlawfully, know- ingly, and designedly, falsely pretend to the said J. P.' that the said R. H. C. had never in any manner theretofore mortgaged, assigned, or incumbered his reversionary interest in the said ten thousand dollars, three per cent, annuities, or any part thereof; that the said R. H. C. had never been a party to any deed or instrument whereby his interest in the said stock had or could have been in any manner affected ; that the said R. H. C. was not then liable on any deed or instrument as surety for any person whomsoever ; that the said R. H. C. had not then borrowed any money whatsoever, except from the said J. P., and that the said R. H. C. did not then owe, and was not then liable for a greater amount of debts, exclusive of a sum of four hundred dollars, which he then owed to the said J. P., than the sum of three hundred dollars ; by means of which said false pretences, in this count mentioned, the said R. H. C. did then and there unlawfully, knowingly, and designedly, fraudulently obtain of and from the said J. P. one order for the payment of money, to wit, for the payment and of the value' of the sum of fifty, dollars, and one piece of paper of the value of one cent, and the sum of fifty dollars in money of the property, goods, chattels, and moneys of the said J. P. with intent to cheat and defraud him of the same ; whereas, in truth and in fact, at the time the said R. H. C. so falsely pretended as last aforesaid, he had mortgaged, assigned, and incumbered his said reversionary interest in the said sum of CHAP. XIV.J FALSE PKETBNCES. 103 ten thousand dollars, three per cent, annuities, to wit, the said R. S. H. H. and J. J., for the purpose of securing to them respectively the repayment of the said sums of one thousand dollars and five hundred dollars hereinbefore mentioned ; and whereas, in truth and in fact, at the time the said R. H. C. so falsely pretended as last aforesaid, the said R. H. C. had been, and then was, a party to certain deeds, by which his said reversionary interest in the said sum of ten thousand dollars had been and was then affected, to wit, the said deeds by which the repayment of the said sums of one thousand . dollars and five hundred dollars was charged upon his said reversionary interest; and whereas, in truth and in fact, at the time the said R. H. C. so falsely pretended as in this count aforesaid, the said R. H. C. was liable on certain bonds as surety for certain persons, to wit, one M. S. and one E. J., to wit, in two several sums of fifteen thousand dollars; and whereas, in truth and in fact, at the time the said R. H. C. so falsely pretended as in this count mentioned, the said R. H. C. had borrowed certain sums of money from certain persons other than the said J. P., to wit, the sum of five thousand dol- lars from the said R. S. H. H. and the sum of three thousand dollars from the said J. J. ; and whereas, in truth and in fact, at the time the said R. H. C. so falsely pretended as aforesaid, the said R. H. C. did owe, and was then liable for a greater amount of debts than the sum of three hundred dollars, ex- clusive of any money which he then owed to said J. P., that is to say, the said R. H. C. then owed to the said R. S. H. H. a greater sum of money than the sum of three hundred dol- lars, to wit, the sum of six hundred dollars, and the said R. H. C. then owed to the said J. J. a greater sum of money than the said sum of three hundred dollars, to wit, the sum of six hundred dollars, all which .said several premises the said R. H. C. at the time he so falsely pretended as aforesaid, well knew ; contrary to the form of the statute in such case made and provided, and against the peace, etc. 104 FALSE PRETENCES. [cHAP. XIV. 5. Against a defendant for obtaining money by falsely pretend- ing that he had then purchased certain property, which it was necessary he should immediately pay for?- The jurors, etc., upon their oath present, that W. J. late of the parish of Christchurch, Newgate Street, in the city of London, laborer, on the first day of March in the year of our Lord , at the parish aforesaid, in the city aforesaid, and within the jurisdiction of the said court, did unlawfully, fraudu- lently, knowingly, and designedly, falsely pretend to one S. N. that the said W. J. then had at a certain place then called and known by the name of Dixon's Liars, to wit, at Dixon's Liars, at Islington, in the county of Middlesex, and within the jurisdiction of the said court, one hundred and eight sheep, which the said W. J. had then purchased, and for which said one hundred and eight sheep the said "W. J. had then and there to pay on the said first day of March, to wit, on the day and year aforesaid, and within the jurisdiction aforesaid, by means of which said false pretences the said W. J. did then and there, and within the jurisdiction aforesaid, unlawfully, knowingly, and designedly, fraudulently obtain of and from the said S. N. of the goods, chattels, moneys, and valuable securities of the said S. N. ten pieces of the current gold coin of this realm, called sovereigns, one valuable security, to wit, an order for the payment of, and of the value of one hundred dollars ; one other valuable security, to wit, one other order for the payment of, and of the value of five hundred dollars ; one other valuable security, to wit, one other order for the pay- ment of money, to wit, one other order for the payment of, and of the value of four hundred dollars ; one other valuable security, to wit, one other order for the payment of money, to wit, one other order for the payment of, and of the value of three hundred dollars ; and one other valuable security, to wit, one other order for the payment of money, to wit, one other order for the payment of, and of the value of six hun- dred dollars ; with intent then and there, and within the juris- ' 4 Cox, C. C. Appendix, p. xxxiii. CHAP. XIV.J FALSE PRETENCES. 105 diction aforesaid, to cheat and defraud the said S. N. of the same goods, chattels, moneys, valuable securities, and orders for the payment of money respectively, the said sums of money payable and secured by and upon the said valuable securities and orders for the payment of money, being then and there due and unsatisfied to the said S. N. the proprietor and owner of the said several valuable securities and orders for the pay- ment of money respectively ; whereas, in truth and in fact, the said W. J. had not at the time when the said W, J. so obtained the said moneys, and the said several valuable securities and orders for the payment of money from the said S. N. as afore- said, and when the said W. J. made the said false pretences as aforesaid, one hundred and eight sheep at Dixon's Liars, at Islington ; and whereas, in truth and in fact, the said W. J, had not then purchased the said one hundred and eight sheep ; and whereas, in truth and in fact, the said W. J. had not then to pay for the said one hundred and eight sheep, to wit, on the said first day of March ; all of which said false pretences the said W. J. at the time of the making thereof well knew to be false ; to the great damage, injury, and deception of the said S. N., and in fraud of the said S. N., to the evil example of all others in the like case offending, contrary to the form of the statute in such case made and provided, and against the peace, etc. Second Count. — And the jurors aforesaid, upon their oath aforesaid, do further present, that the said S. N. heretofore, to wit, on the day and year aforesaid, and within the jurisdic- tion aforesaid, was accustomed to, and from time to time and at various times did, at the request of the said W. J. advance and intrust divers sums of moneys to the said W. J. for the purpose of, and to enable the said W. J. to pay for sheep, after the said W. J. had, in the way of his trade, purchased the same. And the jurors aforesaid, on their oath aforesaid, do further present, that the said W. J. heretofore, to wit, on the said first day of March, in the year aforesaid, in the city aforesaid, and within the jurisdiction of the said court, well knowing the premises, did unlawfully, fraudulently, knowingly, and designedly, falsely pretend to the said S. N. 106 FALSE PRETENCES. [CHAP. XIV. that the said W. J. had theretofore and before the making the false pretences by the said W. J. hereinafter in this count mentioned, purchased for himself a certain number of sheep, of a certain value, to wit, of the value of five hundred dollars, for which the said W. J. had to pay at the bank of Messieurs Pockington and Company on the day and year last aforesaid, a certain sum of money, to wit, the sum of five hundred dol- lars, by means of which last-mentioned false pretences in this count mentioned, the said W. J. did then and there, and within the jurisdiction aforesaid, unlawfully, knowingly, and designedly, fraudulently obtain of and from the said S. N. of the goods and chattels, moneys and valuable securities of the said S. N. one valuable security, to wit, one order for the pay- ment of money, to wit, one order for the payment of and of the value of five hundred dollars, with intent then and there, at the time of the making of the said false pretences by the said W. J. in this count mentioned, and within the jurisdic- tion of the said court, to cheat and defiraud the said S. N. of the said valuable security and order for payment of money in this count mentioned, the said sums of money in this count payable, and secured by and upon the said valuable security and order for the payment of money in this count mentioned, being then and there, to wit, at the time of the making of the said last-mentioned false pretences, due and unsatisfied to the said S. N. the proprietor and owner of the same ; whereas, in truth and in fact, the said W. J. had not theretofore, and before the making of the said false pretences by the said W. J. in this count mentioned, purchased for himself a certain number of sheep, of the value of five hundred dollars, for which the said W. J. had to pay at the bank of Messieurs Pockington and Company on the day and year last aforesaid, and in this count mentioned, the said sum of five hundred dol- lars, which said last-mentioned false pretences the said W. J. at the time of the making thereof well knew to be false ; to the great damage, injury, and deception of the said S. N., and in fraud of the said S. N., to the evil example of all others in the like case offending ; contrary to the statute in that case made and provided, and against the peace, etc. CHAP. XIV.] FALSE PRETENCES. 107 6. For obtaining money by the fq,lse pretence on the part of the defendant, that he was entitled to grant a lease of certain freehold property}- The jurors, etc., upon their oath present, that P. F. late of B. in the county of Middlesex, laborer, on the first day of June in the year of our Lord , at B. aforesaid, in the county aforesaid, and within the jurisdiction of the Central Criminal Court, unlawfully and knowingly did falsely pretend to one B. E. that the said P. F. then was the freeholder of a certain messuage and premises situate and being in Church Street, in B. aforesaid, in the county aforesaid, and that the said P. F. then had a good and sufficient right, title, estate, and interest in the said messuage and premises to entitle and enable the said P. F. to grant to the said B. E. a lease of the said messuage and premises for a term of twenty years, and that the said P. F. then had power to grant the said lease to the said B. E., and to give to the said B. E. a good and valid title to the said messuage and premises for the said term of twenty years, by means of which said false pretences the said P. F. did then and there unlawfully and fraudulently obtain from the said B. E. thirty pieces of the current gold coin of this realm called sovereigns, ten pieces of the current silver coin of this realm called shillings, and one promissory note of the governor and company of the Bank of England, for the payment of ten pounds, of the moneys of the said B. E., with intent then and there to cheat and defraud him of the same ; whereas, in truth and in fact, the said P. F. was not at the time he so falsely pretended as aforesaid, the freeholder of the said messuage and premises, or of any part thereof, nor had he then any freehold estate whatever in the said messuage and premises, or in any part thereof, as the said P. F. then well knew ; and whereas, in truth and in fact, the said P. F. had not at the time he so falsely pretended as aforesaid a sufficient right, title, estate, or interest to entitle or enable him to grant any lease of the said messuage and premises for a term of ' 5 Cox, C. C. Appendix, p. li. 108 FALSE PRETENCES. [cHAP. XIV. twenty years, or any lease whatever of the said messuage and premises, or any part thereof, as the said P. F. then well knew ; and whereas, in truth and in fact, the said P. F. had not at the time he so falsely pretended as aforesaid any right, title, estate, or interest whatever in or to the said messuage and premises, nor had he then power to grant the said lease to the said B. E., or to give to the said B. E. any title to the said messuage and premises for the said term of twenty years, or for any term of years whatever, or any title what- ever to the said messuage and premises, or any part thereof; to the great damage of the said B. E., and contrary to the form of the statute in such case made and provided, and against the peace, etc. Second Count. — And the jurors aforesaid, upon their oath aforesaid, do further present, that before and at the time of the committing of the offence hereinafter next mentioned, one J. L. was the owner and proprietor of the said messuage and premises in the said first count of this indictment men- tioned. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said P. F. on the day aforesaid, in the year aforesaid, at B. aforesaid, in the county aforesaid, and within the jurisdiction aforesaid, unlawfully and know- ingly did again falsely pretend to the said B. E. that the said P. F. then was the freeholder of the said messuage and prem- ises, and that the old gentleman to whom the premises for- merly belonged, meaning the said J. L. had died, and had left the said P. F. every thing, and that the said P. F. then had a sufficient estate and interest in the said messuage and premises to entitle and enable him to grant, and then had power to grant to the said B. E. a lease of the said messuage and premises for a term of ninety years, by means of which said false pretences in this count mentioned, the said P. F. did then and there unlawfully and fraudulently obtain from the said B. E. thirty pieces of the current gold coin of this realm called sovereigns, ten pieces of the current silver coin of this realm called shillings, and one promissory note of the gov- ernor and company of the Bank of England, for the payment CHAP. XIV.J FALSE PRETENCES. 109 of ten pounds of the moneys of the said B. E., with the intent then and there to cheat and defraud him of the same ; whereas, in truth and in fact, the said P. F. was not at the time he so falsely pretended, as in this count mentioned, the freeholder of the said messuage and premises, or any part thereof, nor had he then any freehold estate in the said messuage and premises, or in any part thereof, as the said P. F. then well knew ; and whereas, in truth and in fact, at the time the said P. F. so falsely pretended as last aforesaid, the said J. L. had not died, as the said P. F. then well knew; and whereas, in truth and in fact, the said P. F. had not at the time he so falsely pretended as last aforesaid, a sufficient estate or inter- est in the said messuage and premises to entitle or enable him to grant, nor had he then any power to grant any lease for a term of twenty years, or any lease whatever of the said messuage and premises, or of any part thereof, as the said P. F. then and there well knew ; to the great damage of the said B. E., contrary to the form of the statute in such case made and provided, and against the peace, etc. 7. For obtaining money by falsely pretending that the defend- ant was the authorized agent of the Executive Committee of the Exhibition of the Works of Industry of all Nations, and that he had power to allot space to private individuals for the exhibition of their merchandise?- The jurors, etc., upon their oath present, that heretofore and before the committing of the oifence hereinafter next mentioned, to wit, on the twenty-fifth day of October in the year of our Lord one thousand eight hundred and fifty, an application was made by Harriet Richardson, then being the wife of Thomas Richardson, to one Adam Young the younger, for a certain space, to wit, a space of four feet square, in a certain building then in the course of erection in Hyde Park, in the county of Middlesex, for the purpose of an. exhibition intended to take place in the year of our Lord one- ^ 4 Cox, C. C. Appendix, p. xlv. 10 110 FALSE PRETENCES. [CHAP. XIV. thousand eight hundred and fifty-one, and called and known as the Great Exhibition of the Works of Industry of all Nations, for the purpose of enabling the said Harriet Richard- son to exhibit certain articles, to wit, stays, at the said exhibi- tion. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said Adam Young the younger, late of the parish of Saint Dunstan in the East, in the city of London, laborer, afterwards, to wit, on the day aforesaid, in the year aforesaid, at the parish aforesaid, in the city afore- said, and within the jurisdiction of the Central Criminal Court, unlawfully, knowingly, and designedly, did falsely pre- tend to the said Harriet Richardson, that the said Adam Young the younger, then was an authorized agent for the pur- pose of granting space for the exhibition of articles at the said Exhibition. And that the said Adam Young th^ younger, then was the only person who had the power to grant space to the said Harriet Richardson, for the exhibition of articles at the said Exhibition. And that the said Adam Young the younger, then had power to grant to the said Harriet Richard- son the said space so applied for by the said Harriet Richard- son as aforesaid, by means of which said false pretences the said Adam Young the younger did then and there unlawfully obtain from the said Harriet Richardson three pieces of the current silver coin of this realm called half-crowns, two pieces of the current silver coin of this realm called shillings, and one piece of the current silver coin of this realm called a six- pence, of the moneys of the said Thomas Richardson, with intent then and there to cheat and defraud the said Thomas Richardson of the same ; whereas, in truth and in fact, the said Adam Young the younger was not then an authorized agent for the purpose of granting, and had not any authority whatever to grant space for the exhibition of articles at the said Exhibition, or any space whatever in the said building, as the said Adam Young the younger then and there well knfew; and whereas, in truth and in fact, the said Adam Young the younger was not then the only person who had power to grant space for the exhibition of articles at the said Exhibition, as the said Adam Young the younger then CHAP. XIV.J FALSE PRETENCES. Ill and there well knew. And whereas, in truth and in fact, the said Adam Young the younger had not then any power, authority, or right whatever to grant space for the exhibition of articles at the said Exhibition to the said Harriet Richard- son, or to any other person whatever, or any space whatever in the said building to the said Harriet Richardson, or any other person, as the said Adam Young the younger then and there well knew ; to the great damage of the said Thomas Richardson, contrary to the form of the statute in such case made and provided, and against the peace, etc. Second Count. — And the jurors aforesaid, upon their oath aforesaid, do further present, that heretofore, and before the committing of the offence hereinafter next mentioned, to wit, on the day aforesaid, in the year of our Lord one thousand eight hundred and fifty, an application was made by the said Harriet, the wife of the said Thomas Richardson, to the said Adam Young the younger, for a certain space, to wit, a space of four feet square at the Great Exhibition, meaniijg thereby a space of four feet square in a certain building, intended to be used as the building in which a certain exhibition, called and known as the Great Exhibition of the Works of Industry of all Nations, should take place, in the year of our Lord one thousand eight hundred and fifty-one, for the exhibition of certain articles, to wit, stays, at the said Exhibition. And the jurors aforesaid do further present, that the said Adam Young- the younger afterwards, to wit, on the day aforesaid, in the year of our Lord one thousand eight hundred and fifty, at the parish aforesaid, in the city aforesaid, and within the jurisdic- tion of the Central Criminal Court, unlawfully, knowingly, and designedly, did again falsely pretend to the said Harriet Richardson, that the said Adam Young the younger, then had power to grant to the said Harriet Richardson space for the exhibition of articles at the said Exhibition. And that the said Adam Young the younger then had power to grant to the said Harriet Richardson, the said space so applied for by the said Harriet Richardson as aforesaid, by means of which said last-mentioned false pretences the said Adam Young the younger did then and there unlawfully obtain 112 FALSE PRETENCES. [CHAP. XIV. from the said Harriet Richardson three other pieces of the current silver coin of this realm called half-crowns, two other pieces of the cun-ent silver coin of this realm called shillings, and one other piece of the current' silver coin of this realm called a sixpence, of the moneys of the said Thomas Richard- son, with intent then and there to cheat and defraud the said Thomas Richardson of the same ; whereas, in truth and in fact, the said Adam Young the younger had not then any power or right whatsoever to grant space for the exhibition of articles at the said Exhibition, to the said Harriet Richardson, or to any other person whatever, or any space whatever in the said building, to the said Harriet Richardson or any other person, as the said Adam Young the younger then and there as last aforesaid well knew ; to the great damage of the said Thomas Richardson, against the form of the statute in such case made and provided, and against the peace, etc. Third Count. — And the jurors aforesaid, upon their oath aforesaid^ do further present, that before the committing of the offence hereinafter next mentioned, to wit, on the day aforesaid, in the year of our Lord one thousand eight hundred and fifty, an application was made by the said Thomas Rich- ardson to the said Adam Young the younger for a certain space, to wit, a space of four feet square, in the building intended for the proposed Great Exhibition of one thousand eight hundred and fifty-one, meaning thereby the Great Exhibition of the Works of Industry of all Nations, intended to be holden in the year of our Lord one thousand eight hundred and fifty-one. And the jurors aforesaid, upon their oath aforesaid, do further present, that heretofore, and before the making of the said last-mentioned application, an Executive Committee for car- rying out the said exhibition had been and was duly appointed for the purpose of carrying out the said exhibition, and that, amongst other things, the power of allotting space in the said last-mentioned building to persons desirous of becoming ex- hibitor^ in the said exhibition had been, and was, vested and intrusted to the said committee. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said Adam Young the younger afterwards, to wit, on the day CHAP. XIV.] FALSE PRETENCES. 113 aforesaid, in the year of our Lord one thousand eight hundred and fifty, at the parish aforesaid, in the city aforesaid, and within the jurisdiction aforesaid, unlawfully, knowingly, and fraudulently, did again falsely pretend to the said Thomas Richardson, that the said Adam Young the younger was the only authorized agent of the commissioners, meaning thereby that he was the only authorized agent of the said executive com- mittee for granting space, meaning thereby space in the said last-mentioned building, and that the said Adam Young the younger, then had power to allot to the said Thomas Richard- son the space in the said building, so applied for by the said Thomas Richardson as last aforesaid, by means of which said last-mentioned false pretences, the said Adam Young the younger, did then and there as last aforesaid, unlawfully attempt and endeavor unlawfully to obtain from the said Thomas Richardson a large sum of money, to wit, the sum of ten shillings, of the moneys of the said Thomas Richard- son, with intent then and there to cheat and defraud him thereof; whereas, in truth and in fact, the said Adam Young the younger was not, at the time he so falsely pretended as last aforesaid, an authorized agent of the said executive com- mittee, for granting space in the last-mentioned building, as he the said Adam Young the younger then and there as last aforesaid, well knew. And whereas, in truth and in fact, the said Adam Young the younger had not, at the time he falsely pretended, as last aforesaid, any power, authority, or right whatsoever, to allot any space whatever in the said last- mentioned building to the said Thomas Richardson, or to any other person, as he the said Adam Young the younger, at the time he so falsely pretended as last aforesaid, well knew ; to the great damage of the said Thomas Richardson, and against the peace, etc. Fourth Count. — And the jurors aforesaid, upon their oath aforesaid, do further present, that before the committing of the offence next hereinafter mentioned, to wit, on the day aforesaid, in the year of our Lord one thousand eight hundred and fifty, an application was made by the said Thomas Rich- ardson to the said Adam Young for a certain space, to wit, 10* 114 FALSE PKETENCES. [CHAP. XIV. the space of four feet square, in the building intended for the proposed Great Exhibition, to be holden in the year of our Lord one thousand eight hundred and fifty-one, to wit, the proposed Great Exhibition of Works of Industry of all Na- tions. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said Adam Young the younger after- wards, to wit, on the day aforesaid, in the year of our Lord one thousand eight hundred and fifty, at the parish aforesaid, in the city and within the jurisdiction aforesaid, unlawfully, knowingly, and fraudulently, did again falsely pretend to the said Thomas Richardson, that the said Adam Young the younger then, as last aforesaid, had power to allot to the said Thomas Eichardson the space in the said last-mentioned building, so applied for by the said Thomas Richardson as last aforesaid, by means of which said last-mentioned false pre- tence the said Adam Young the younger did then and there, as last aforesaid, unlawfully attempt and endeavor unlawfully to obtain from the said Thomas Richardson a large sum of money, to wit, the sum of ten shillings, of the moneys of the said Thomas Richardson, with intent then and there to cheat and defraud the said Thomas Richardson thereof; whereas, in truth and in fact, the said Adam Young the younger had not, at the time he so falsely pretended as last aforesaid, any power, authority, or right whatever, to allot any space what- ever in the last-mentioned building, to the said Thomas Rich- ardson, or to any other person, as the said Adam Young the younger at the time he so falsely pretended as last 9,foresaid, well knew ; to the great damage of the said Thomas Richard- son, and against the peace, etc. CHAP. XIV.] FALSE PRETENCES. 115 8. Against two defendants for obtaining money under false pre- tences ; the false pretences beings that one of the defend- ants having advanced money to the other on a deposit of certain title deeds, had himself deposited the deeds with a friend, and that he required a sum of money to redeem them; with Counts for conspiracy ^ The jurors, etc., upon their oath present, that heretofore, and before and at the time of the committing of 'the offence hereinafter mentioned, one C R. acting in fraudulent collusion with one J. A., had retained and employed one W. J., then and still practising as an attorney at law and solicitor in chancery, as the attorney and solicitor of the said C. R. to make application to the said J. A. for .a certain debt of five hundred dollars, then alleged by the said C. R. to be due to him from the- said J. A. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said .J. A. after-; wards and before the committing of the offence hereinafter mentioned, acting in fraudulent collusion with the said C. R., offered to and arranged with the said W. J. as such attorney and solicitor of the said C. R. as aforesaid, to discharge such alleged debt of five hundred dollars, and also the further sum of fifty dollars, for a certain other alleged debt upon the deeds hereinafter mentioned being delivered to the said J. A., which said deeds the said C. R., acting in firaudulent collusion with the said J. A., afterwards and before the committing of the offence hereinafter mentioned, proposed to place in the hands of the said W. J. as the attorney and solicitor of the said C. R., for the purpose of being so delivered to the said J. A. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said C. R. late of the parish of Saint George, Bloomsbury, in the county of Middlesex, and within the juris- diction of the said Central Criminal Court, laborer, and the said J. A. late of the same place, laborer, devising and con- triving, and wickedly combining and intending to deceive the ' 4 Cox, C. C. Appendix, p. xli. 116 FALSE PKETBNCES. [cHAP. XIV. said "W. J. in the premises, and to obtain from the said W. J, the said sum of five hundred dollars, and to cheat and defraud him of the same afterwards, to wit, on the first day of July in the year of our Lord , at the parish of Saint George, Bloomsbury aforesaid, in the county aforesaid, and within the jurisdiction of the said Central Criminal Court, unlawfully, knowingly, and designedly did falsely pretend to the said W. J. that the said J. A. was then really and truly indebted to the said C. E. in the said sum of five hundred dollars, for money lent by the said C. R. to the said J. A. ; that the said J. A. had then deposited with the said C. R. certain deeds relating to the property of the wife of the said J. A. for the purpose of securing payment of the said sum of five hundred dollars to the said C. R., but that the said C. R. afterwards had deposited such deeds with a friend of the said C. R.,who had then advanced money upon the security of the same deeds to the said C. R., and then held the said deeds as such security as last aforesaid ; that the said C. R. then wanted the said sum of five hundred dollars from the said W. J. for the purpose of recovering possession of the said deeds, and to enable the said C. R. to place the same in the hands of the f aid W. J. in order that the same might be redelivered to the said J. A. upon the payment by him to the said W. J. of the said sum of five hundred dollars, pursuant to such offer and arrangement in that behalf as aforesaid ; by means of which said several false pretences, they the said C. R. and J. A. then and there, to wit, on the day and year aforesaid, and within the jurisdiction of the said Central Criminal Court, unlawfully, knowingly, and designedly did fraudulently ob- tain of and from the said W. J. one order for the payment of money, to wit, for the payment, and of the value of five hun- dred dollars then and there being the property of the said W. J., and one piece of paper of the value of one cent of the goods and chattels of the said W. J., with intent then and there to cheat and defraud him of the same property, goods, and chat- tels ; and whereas, in truth and in fact, the said J. A. was not then really and truly indebted to the said C. R. in the said sum of five hundred dollars, as the said C. R. and J. A. so falsely CHAP. XIV.J FALSE PRETENCES. 117 pretended as aforesaid, either for money lent or any cause whatsoever. And whereas, in truth and in fact, the said J. A. had not then deposited with the said C. R. certain deeds relat- ing to the property of the wife of the said J. A. for the pur- pose of securing payment of the said sum of five hundred dollars to the said C. E.., as the said C. R. and J. A. so falsely pretended as aforesaid, or of any sum of money whatever. And whereas, in truth and in fact, the said C. R. had not then deposited any such deeds as the said C. R. and J.. A. so falsely pretended as aforesaid, with any friend of the said C. R. who had then advanced money upon the security of such deeds to the said C. R., or wm any person whatsoever ; nor did any such friend of the said C. R., as the said C. R. and J. A. so falsely pretended as aforesaid, then hold such deed as a security for any money advanced to the said C. R., as the said C. R. and J. A. so falsely pretended as aforesaid. And whereas, in truth and in fact,|ihe said C. R. did not then want the said sum of five hundred dollars from the said W. J. for the purpose of recovering possession of any such deeds as the said C. R. and J. A. so falsely pretended as aforesaid, or to enable the said C. R. to place such deeds in the hands of the said W. J. in order that the same might be redelivered to the said J. A. upon the payment by him to the said W. J. of the said sum of five hundred dollars, pursuant to such offer and arrangement in that behalf as aforesaid. And whereas, in truth and in fact, the said alleged debt, and the said sup- posed deeds, had no existence whatsoever, but were pretended to have existence by the said C. R. and J. A. as aforesaid, for the purpose of -deceiving, cheating, and defrauding the said W. J. in manner aforesaid, and for no other purpose whatever; to the great injury and deception of the said "W. J., to the evil and pernicious example of all other persons in the like case offending, against the peace, etc., and contrary to the form of the statute in such case made and provided. Second Count. — And the jurors aforesaid, upon their oath aforesaid, do further present, that the said C. R. and J. A., de- vising and contriving, and wickedly combining and intending to deceive the said W. J., and to obtain from the said W. J. 118 ■ FALSE PRETENCES. [CHAP. XTV. the said sum of five hundred dollars, and to cheat and defraud him of the same, afterwards, to wit, on the first day of July in the year of our Lord , at the parish of Saint George, Bloomsbury aforesaid, in the county of Middlesex aforesaid, and within the jurisdiction of the said Central Criminal Court, unlawfully, knowingly, and designedly, did falsely pre- tend to the said W. J. that the said J. A. had before then de- posited with the said C. R. certain deeds relating to the prop- erty of the wife of the said J. A. as a security for the payment to the said C. R. of the sum of five hundred dollars ; that the said C. R. had afterward^leposited such deeds with a friend of the said C. R., who haa then advanced money to the said C. R. upon the security of the said deeds, and then held such deeds as such security as last aforesaid. And that the said C. R. then required the sum of five hundred dollars for the purpose of recovering possession of the said deeds, by means of which said several fals||pretences in this count mentioned, the said C. R. and J. A. did then and there unlawfully, know- ingly, and designedly, fraudulently obtain of and from the said W. J. one order for the payment of money, to wit, for the payment of the sum of five hundred dollars, then and there being of the value of five hundred dollars, and the property of the said W. J., and one piece of paper of the value of one cent, of the goods and chattels of the said W. J., with intent then and there to cheat and defi-aud the said W. J. of the said goods and chattels and property ; whereas, in truth and in fact, the said J. A. had not deposited with the said C. R. such deeds relat- ing to the property of the wife of the said J. A., as the said C. R. and J. A. so falsely pretended, as in this count men- tioned. And whereas, in truth and in fact, the said C. R. had not deposited such deeds with any Mend of the said C. R., as the said C. R. and J. A. so falsely pretended, as in this count mentioned. And whereas, in truth and in fact, no friend of the said C. R., nor any person whatsoever, had then advanced money to the said C. R. upon the security of the said deeds. And whereas, in truth and in fact, no friend of the said C. R., nor any person whatsoever, then held such deeds as any secu- rity whatsoever. And whereas, in truth and in fact, the said CHAP. SIV.J FALSE PRETENCES. 119 C. R. did not then require the said sum of five hundred dol- lars, or any sum of money whatsoever, for the purpose of recovering possession of such deeds as the said C. R. and J. A. so falsely pretended, as in this count mentioned. And whereas, in truth and in fact, such deeds had no existence whatsoever, but were so pretended by the said C. R. and J. A. to have existence as aforesaid, for the purpose' of cheating and defrauding the said W. J. as aforesaid, and for no other pur- pose whatsoever; to the great injury and deception of the said W. J., contrary to the form of the statute in such case made and provided, and against the peace, etc. Third Count. — And the jurors aforesaid, upon their oath aforesaid, do further present, that the said J. A. and C. R. afterwards, to wit, on the day and year aforesaid, at the parish aforesaid, in the county aforesaid, and within the jurisdiction of the said Central Criminal Court, unlawfully and wickedly did conspire, combine, confederate, and agree together, and with divers other evil disposed persons, whose names to the jurors aforesaid are as yet unknown, falsely and fraudulently to pretend and cause to appear to the said W. J. that the said J. A. was then indebted to the said C. R. in the sum of five hundred dollars ; that the said J. A. had deposited with the said C. R. certain deeds relating to the property of the wife of the said J. A., as a security for the payment to the said C. R. of the said sum of five hundred dollars ; that the said C. R. had afterwards deposited such deeds with a friend of the said C. R. who had advanced money upon the security of the same, and by whom such deeds were then held ; that the said J. A. was desirous of discharging the said debt due from him to the said C. R., upon the redelivery to the said J. A. of the said deeds, but that the said C. R. was then unable to procure the redelivery to him of the said deeds, for want of money to. pay such money so advanced to him upon the security of the same, and to induce and persuade the said W. J. by means of the several false representations aforesaid, and upon the faith and confidence that such deeds really existed, and upon the promise and assurance of the said C. R. that he would deposit the said deeds with the said W. J., for the purpose of 120 FALSE PRETENCES. [CHAP. XIV. delivering the same to the said J. A., and receiving from the said J. A. such debt of five hundred dollars, so.to be pretended to be due from the said J. A. to the said C. R., to obtain from the said W. J. divers of the moneys of the said W. J., amount- ing to the sum of five hundred dollars, for the pretended pur- pose of obtaining such deeds from such friend of the said C. R., and to cheat and defi-aud the said W. J. of the same, and mutually to aid and assist one another in carrying out and putting into execution the said unlawful and wicked com- bination, conspiracy, confederation, and agreement ; whereas, in truth and in fact, no such deeds as in this count mentioned, then or ever had any existence whatsoever; to the great injury and deception of the said W. J., and against the peace, etc. Fourth Count. — And the jurors aforesaid, upon their oath aforesaid, do further present, that the said J. A. and C R. afterwards, to wit, on the day and year aforesaid, at the par- ish aforesaid, in the county aforesaid, and within the jurisdic- tion of the said Central Criminal Court, unlawfully and wick- edly did conspire, combine, confederate, and agree together, and with divers other evil disposed persons, whose names to the jurors aforesaid are as yet unknown, by divers false pretences, and by divers • false, artful, indirect, deceitful, and fraudulent means, devices, arts, stratagems, and contrivances, to obtain and acquire into their- hands and possession, of and from the said W. J., divers of his moneys, amounting to a large sum, to wit, the sum of five hundred dollars, and to cheat and defraud him of the same ; to the great injury and deception of the said W. J., against the peace, etc., and con- trary to the form of the statute, etc. 9. Obtaining money and goods by means of a flash note.^ The jurors, etc., upon their oath present, that A. B. late of B. in the county of S., laborer, on the first day. of June in ' See Kegina v. Coulson, 1 Denison, C. C. 592 ; 1 Temple & Mew, C. C. 592; 4 Cox, C. C. 227; 1 Eng. Law and Eq. Kep. 550; ante, p. .90. CHAP. XIV.] FALSE PRETENCES. 121 the year of our Lord , at B. aforesaid, in the county- aforesaid, unlawfully, knowingly, and designedly did falsely pretend to C. D. that a certain printed paper then produced by the said A. B., and offered and given by him to the said C. D. in payment for certain pigs before then agreed to be sold by the said C. D. to the said A. B., was a good and valid promissory note for the payment of fifty dollars, by means of which said false pretence the said A. B. did then and there unlawfully, knowingly, and designedly obtain from the said CD. five pigs, of the value of five dollars each, and certain money, to wit, the sum of twenty-five dollars, of the goods, chattels, and moneys of the said C. D., with intent then and there to cheat and defraud the said C. D. of the same. Whereas, in truth and in fact, the said printed paper was not a good and valid promissory note for the payment of the sum of fifty dollars, or for the payment of any sum what- ever, as the said A. B. then and there well knew ; contrary to the form of the statute in such case made and provided. 10. Obtaining money by means of a promissory note of a bank which has stopped payment.^ The jurors, etc., upon their oath ptesent, that A. B. late of B. in the county of S., gentleman, on the first day of June in the year of our Lord , at B. aforesaid, in the county aforesaid, unlawfully, knowingly, and designedly did falsely pretend to C. D. that a certain paper writing, partly printed and partly written, purporting to be a bank-note for the pay- ment of twenty dollars, and to have been issued by a certain firm carrying on business as bankers, under the name and style of The Bank, which said paper writing is of the tenor following, that is to say, etc.; then produced by the said A. B. and offered by him to the said C. D., in exchange for two eagleB, was then and there of the value of twenty dol- ' See observations of BoUand, B., in Kex v. Barnard, 7 Carrington & Payne, 784 ; see also Rex v. Spencer, 3 Carrington & Payne, 420. 11 122 FALSE PRETENCES. [CHAP. XIV. lars, and was then and there a promissory note of a bank the notes of which were then in circulation, and that there was a firm then carrying on business under the name and style of The Bank, and that the said bank-note was then and there a good, valid, and available security for the payment of twenty dollars, by means of which said false pretences the said A. B. did then and there unlawfully, knowingly, and designedly obtain from the said C. D. certain money, to wit, the sum of twenty dollars, of the moneys of the said C. D., with intent then and there to defraud the said C. D. of the same. Whereas, in truth and in fact, the said paper writing was not then of the value of twenty dollars. And whereas, in truth and in fact, the said printed paper was not then a promissory note of a bank the notes of which were then in circulation, and whereas, in truth and in fact, there was not any firm then carrying on business under the name and style of The Bank, and whereas, in truth and in fact, the said printed paper was not then a good, valid, and available security for the payment of twenty dollars, or for the payment of any sum whatever, as the said A. B. then and there well knew; contrary to the form of the statute in such case made and provided. 11. Obtaining goods by cheque on a bank where the defendant had no effects^ The jurors, etc., upon their oath present, that A. B. late of B. in the county of S., laborer, on the first day of June in the year of our Lord , at B. aforesaid, in the county afore- said, unlawfully, knowingly, and designedly did falsely pre- tend to C. D. that a certain paper writing produced by the said A. B. to the said C. D., and purporting to be a cheque drawn by the said A. B. upon E. F. and Company, bankers, ' See Eex v. Jackson, 3 Campbell, 370; 6 Cox, C. C. Appendix, page 1. " This indictment is framed with reference to Eex v. Parker, 2 Moody, C. C. 1 ; 7 CairingtOn & Payne, 825 ; and Mr. Greaves's note in his edition of Kussell on Crimes, vol. ii. p. 300, note (/)." CHAP. XIV.] FALSE PRETENCES. 123 for the payment to the bearer of the sum of one hundred dollars, was then and there a good, genuine, and available order for payment of the sum of one hundred dollars, and was then and there of the value of one hundred dollars, which said cheque is of the tenor following, that is to say, etc. ; and that the said A. B. kept an account with the said E. F. and Company, and that the said A. B. had money in the hands of the said E. F. and Company for the payment of the said cheque, and that the said A. B. had full power, right, and authority to draw cheques upon the said E. F. and Company, by means of which said false pretences the said A. B. did then and there unlawfully, knowingly, and de- signedly obtain from the said C. D. a gold watch, of the value of seventy-five dollars, and a gold chain, of the value of twenty-five dollars, of the goods and chattels of the said C. D., with intent then and there to cheat and defraud the said C. D. of the same. "Whereas, in truth and in fact, the said paper Writing was not then and there a good, genuine, and available order for payment of the sum of one hundred dol- lars ; nor was the same then and there of the value of one hundred dollars ; and whereas, in truth and in fact, the said A. B. did not keep any account with the said E. F. and Com- pany ; and whereas, in truth and in fact, the said A. B. had not any money in the hands of the said E. F. and Company for the payment of the said cheque ; and whereas, in truth and in fact, the said A. B. had not any power, right, or authority to draw cheques upon the said E. F. and Com- pany, as the said A. B. then and there well knew ; contrary to the form of the statute in such case made and provided. 12. Obtaining money by false statement of authority to receive debts. The jurors, etc., upon their oath present, that A. B. late of B. in the county of S., laborer, on the first day of June in the year of our Lord , at B. aforesaid, in the county aforesaid, unlawfully, knowingly, and designedly did falsely pretend to C. D. that the said A. B. was then and there in partnership 124 FALSE PRETENCES. [CHAP. XIV. with E. F., and that the said A. B. was then and there author- ized to receive debts due to the said E. F. ; by means of which said false pretences, the said A. B. did then and there unlaw- fully, knowingly, and designedly obtain from the said C. D. the sura of forty dollars, of the moneys of the said C. D., with intent then and there to cheat and defraud the said C. D. of the same. Whereas, in truth and in fact, the said A. B, was not then and there in partnership with the said E. F. ; and whereas, in truth and in fact, the said A. B. was not then and there authorized to receive debts due to the said E. F., as the said A. B. then and there well knew ; contrary to the form of the statute in such case made and provided. 13. Obtaining- money by pretence of payment to a third person.^ The jurors, etc., upon their oath present, that A. B. late of B. in the county of S., laborer, on the first day of June in the year of our Lord , at B. aforesaid, in the county aforesaid, unlawfully, knowingly, and designedly did falsely pretend to C. D. that the said A. B. had paid to E. F. the sum of five dollars ; by means of which said false pretence the said A. B. did then and there unlawfully obtain from the said C. D. the sum of five dollars of the moneys of the said C. D., with intent then and there to cheat and defraud the said C. D. of the same. Whereas, in truth and in fact, the said A. B. had not then paid to the said E. F. the sum of five dollars, as the said A. B. then and there well knew; contrary to the form of the statute in such case made and provided. 14. Obtaining money by false pretences as to the name and cir- cumstances of the defendant? The jurors aforesaid, upon their oath present, that A. B. ' See Rex v. Plestow, 1 Campbell, 494. ' Obtaining money by means of false statements of the name and circum- stances of the defendant, or of a third person, either in a begging letter or by personal representations, is within the statute. See Begiua v. Jones, 1 CHAP. XIV.j FALSE PKETBNCBS. 125 late of B. in the county of S., laborer, on the first day of June in the year of our Lord , at B. aforesaid, in the county aforesaid, unlawfully, knowingly, and designedly did falsely pretend to C. D. that the said A. B. was E. F., and that the said A. B. was a ruined merchant, and in ill health ; and that the said A. B. had been bred to mercantile pursuits ; and that the said A. B. lost a large sum of money by the upsetting of a vessel ; by means of which said false pretences the said A. B. did then and there unlawfully, knowingly, and design- edly obtain from the said C. D. the sum of twenty dollars, of the moneys of the said C. D., with intent then and there to cheat and to defraud the said C. D. of the same. Whereas, in truth and in fact, the said A. B. was not E. F. ; and where- as, in truth and in fact, the said A. B. was not a ruined mer- chant, nor was the said A. B. in ill health ; and whereas, in truth and in fact, the said A. B. had not been bred to mer- cantile pursuits ; and whereas, in truth and in fact, the said A. B. had not lost a large sum of money, or any money what- ever, by the upsetting of a vessel, as the said A. B. then and there well knew ; contrary to the form of the statute in such case made and provided. 15. Obtaining, money by personating' another.^ The jurors, etc., upon their oath present, that A. B. late of B. in the county of S., laborer, on the first day of June in the year of our Lord , at B. aforesaid, in the county afore- said, unlawfully, knowingly, and designedly did falsely pre- tend to E., the wife of C. D., that the said A. B. was F. G., and that he was the same person that had cured H. L; by means of which said false pretences, the said A. B. did then and there unlawfully, knowingly, and designedly obtain from the said E. the sum of five dollars, of the money of the said Denison, C. C. 551 ; 4 Cox, C. C. 198 ; 1 Eng. Law and Eq. Keps. 533 ; 1 Temple 8e Mew, C. C: 270. If the money were obtained by tlie medium of a letter, a count should be added, setting it out according to its tenor. ' See Kegina v. Bloomfield, Carrington and Marshman, 537. 11* 126 FALSE PRETENCES. [CHAP. XIV. C. D., with intent then and there to cheat and defraud the said C. D. of the same ; whereas, in truth and in fact, the said A. B. was not F. G. ; and whereas, in truth and in fact, the said A. B. was not the same person that had cured H. L, as the said A. B. then and there well knew ; contrary to the form of the statute in such case made and provided. 16. Obtaining money by false representations as to the employ- ment and condition of the defendant?- The jurors, etc., upon their oath present, that A. B. late of B. in the county of S., laborer, on the first day of June in the year of our Lord , at B. aforesaid, in the county aforesaid, unlawfully, knowingly, and designedly did falsely pretend to C. D. that the said A. B. was then and there em- ployed by one E. F. to drive some cattle from Wales to Lon- don for the said E. F., and that the said A. B. had been detained by the weather and the state of the roads until all his money was gone, and that the said A. B." was without any money to enable him to proceed on his journey; by means of which said false pretences the said A. B. did then and there unlawfully, knowingly, and designedly obtain from the said C. D. the sum of twenty dollars of the moneys of the said C. D., with intent then and there to cheat and defraud the said C. D. of the same ; whereas, in truth and in fact, the said A. B. was not then and there employed by the said E. F. to drive some cattle from "Wales to London ; and whereas, in truth and in fact, the said A. B. was not then employed to drive any cattle whatever ; and whereas, in truth and in fact, the said A. B. had not been detained by the weather and the state of the roads, as the said A. B. then and there well knew ; contrary to the form of the statute in such case made and provided. ' See Kex v. Villeneuve, 2 East, P. C. 380. CHAP. XIV.] FALSE PKETENCES. 127 17. Obtaining' a horse by false representation.^ The jmors, etc., upon their oath present, that A. B. late of B. in the county of S., laborer, on the first day of June in the year of our Lord , at B. aforesaid, in the county aforesaid, unlawfully, knowingly, and designedly did falsely pretend to C. D. that the said A. B. was then the servant of a gentlema,n, living at , and that the said A. B. was then employed to purchase horses for his master, and that the said A. B. had purchased several horses at fair for his mas- ter; by means of which said false pretence the said A. B. did then and there unlawfully, knowingly, and designedly obtain &om the said C. D. a filly, of the value of fifty dollars, of the property of the said C. D., with intent then and there to cheat and defi:aud the said C. D. of the same. "Whereas, in truth and in fact, the said A. B. was not then the servant of any gentleman living at . And whereas, in truth and in fact, the said A. B. was not then employed to purchase horses for his master. And whereas, in truth and in fact, the said A. B. had not purchased any horses at fair for his master, as the said A. B. then well knew ; contrary to the form of the statute in such case made and provided. 18. Obtaining- goods by falsely pretending that the defendant was a trader in solvent circumstances. The jurors, etc., upon their oath present, that A. B. late of B. in the county of S., trader, on the first day of June in the year of our Lord -^ , at B. aforesaid, in the county aforesaid, unlawfully, knowingly, and designedly did falsely pretend to C. D. that the said A- B. was a member of a certain firm car- rying on business at B. aforesaid, in the county aforesaid, by and under the name, style, and firm of E. F. and Company, and that- the said last-mentioned firm of E. F. and Company was then and there in solvent circumstances, and had then, to ' See Rex t: Dale,, 7 Carrington & Pa7ne, 372. 128 FALSE PRETENCES. [CHAP. XlVi wit, on the said first day of June in the year aforesaid, at B. aforesaid, in the county aforesaid, a balance in its favor of ten thousand dollars ; by means of which said false pretences the said A. B. did then and there unlawfully, knowingly, and de- signedly, obtain from the said C. D. one hundred China platesj of the value of one dollar each ; fifty China dishes, of the value; of two dollars each, and fifty China dish covers, of the value of one dollar each ; one hundred China tea-cups, of the value^of fifty cents each ; one hundred China tea saucers, of the value of fifty cents each ; twenty China jugs, of the value of two dollars each, and five hundred pieces of China ware, of the value of one dollar each, and two crates, of the value of five dollars each, of the property of the said C. D., with intent then and there to cheat and defraud the said C. D. of the same. Whereas, in truth and in fact, the firm of E. F. and Company was not then and there in solvent circumstances ; and whereas, in truth and in fact, the said firm of E. F. and Company had not at the time the said A. B. so falsely pre- tended as aforesaid, a balance in their favor of ten thousand dollars, as the said A. B. then and there well knew ; contrary to the form of the statute in such case made and provided. 19. Obtaining money by false allegations of the delivery of goods.^ The jurors, etc., upon their oath present, that A. B. late of B. in the county of S., laborer, on the first day of June in the year of our Lord , at B. aforesaid, in the county afore- said, unlawfully, knowingly, and designedly did falsely pre- tend to C. D. that the said A. B. had carried certain goods of the said C. D. from to and had delivered the said goods to B. F., and that the said E. F. .had given the said A. B. a written receipt for the said goods, and that the said A. B. had either lost or mislaid the said receipt, or left it at home ; by means of which said false pretences the said A. B. did then and there unlawfully, knowingly, and designedly J ^ See Kei v. Airey, 2 East, 30. CHAP. XIV.] FALSE PRETENCES. 129 obtain from the said C. D. the sum of five dollars, of the moneys of the said C. D., with intent then and there to cheat land defraud the said C. D. of the same. Whereas, in truth and in fact, the said A. B. had not carried the said goods of the said C. D., or any part thereof, from to ; and whereas, in truth and in fact, the said A. B. had not deliv- ered the said goods to E. F. ; and whereas, in truth and in fact, the said E. F. had not given the said A. B. any written receipt for the said goods or for any goods whatever; and whereas, in truth and in fact, the said A. B. never had in his possession any receipt for the said goods from the said E. F. or from any other person, as the said A. B, then and there well knew ; contrary to the form of the statute in such case made and provided. 20. Obtaining money by false pretence as to the amount due for carriage of a parcel?- The jurors, etc., upon their oath present, that A. B. late of B. in the county of S., laborer, on the first day of June in the year of our Lord , at B. aforesaid, in the county afore- said, unlawfully, knowingly, and designedly did falsely pre- tend to C. D. the servant of E. F., that the sum of three dol- lars had been charged, and was then due and payable for the carriage and porterage of a certain parcel then and there brought by the said A. B. for the said E. F., and then and there delivered to the said C. D. by the said A. B. ; and that the said A. B. was then and there authorized and directed to receive and take the sum of three dollars for the carriage and porterage of the said parcel ; by means of which said false pretences, the said A. B. did then and there unlawfully, know- ingly, and designedly obtain from the said C. D. the sum of two dollars, of the moneys of the said E. F., with intent then and there to cheat and defraud the said E. F. of the same. Whereas, in truth and in fact, the sum of three dollars had not been charged, nor was the said sum of three dollars then * See Rex v. Douglas, 1 Campbell, 212. 130 FALSE PRETENCES. [CHAP. XIV. and there due and payable for the carriage and porterage of the said parcel; and whereas, in truth and in fact, the said A. B. was not then and there authorized or directed to receive or take the sum of three dollars for the carriage and porterage of the said parcel ; and whereas, in truth and in fact, the sum of one dollar and no more was then and there due and payable for the carriage and porterage of the said parcel, as the said A. B. then and there well knew ; con- trary to the form of the statute in such case made and pro- vided. 21. Obtaining money by rendering a false account of work done by third parties?- The jurors, etc., upon their oath present, that at the time of the making the false pretences hereinafter mentioned, A. B. late of B. in the county of S., was the servant of one C D., and that it was the duty of the said A. B. as such servant, to render a true and correct account of the work done by and money due to the workmen of the said C. D. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said A. B. on the first day of June in the year of our Lord , at B. aforesaid, in the county aforesaid, unlawfully, knowingly, and designedly did falsely pretend to the said C. D. that a certain account kept by the said A. B., and then and there shown by him to the said C. D. was a true and correct account, "and that the sum of one hundred dollars was then and there due in respect of work performed by the work- men of the said C. D., for and on account of the said C. D. ; by means of which said false pretences the said A. B. did then and there unlawfully, knowingly, and designedly obtain from the said C. D. the sum of ten dollars, of the moneys of the said C. D., with intent then and there to cheat and defraud the said C. D. of the same. Whereas, in truth and in fact, the said account shown by the said A. B. to the said C. D. was not a true and correct account ; and whereas, in truth ' See Kex v. Mitchell, 2 East, P. C. 820. CHAP. XIV. J FALSE PRETENCES. 131 and in fact, the sum of fifty dollars was not then and there due in respect of work performed by the workmen of the said C. D. for and on account of the said C. D., as the said A. B. then and there well knew ; contrary to the form of the stat- ute in such case made and provided. 22. Obtaining money by falsely pretending that a member of a Friendly Society was indebted to the Society.^ The jurors,- etc., upon their oath present, that at the time of making the false pretence hereinafter mentioned, A. B. of B. in the county of S., gentleman, was secretary to the Earl of Uxbridge Lodge of Odd-Fellows at B. aforesaid, in the county aforesaid, and that C. D. was a rruember of the said lodge. And that, on the first day of June in the year of our Lord , at B. aforesaid, in the county aforesaid, the said A. B. unlawfully, knowingly, and designedly did falsely pretend to the said C. D. that the sum of five dollars was then due from the said C. D. to the said lodge ; by means of which said false pretence the said A. B. did then and there unlawfully, knowingly, and designedly obtain from the said C. D. the sum of five dollars, of the moneys of the said C. D., with intent then and there to cheat and defraud the said C. D. of the same. Whereas, in truth and in fact, the sum of five dol- lars was not then due from the said C. D. to the said lodge; and whereas, in truth and in fact, the sum of two dollars and no more was then due from the said C. D. to the said lodge, as the said A. B. then and there well knew ; contrary to the form of the statute in such case made and provided. 23. Falsely pretending that the Rules of a Friendly Society had been duly certified. The jurors, etc., upon their oath present, that A. B. late of ' See Kegina v. Woolley, 1 Denison, C. C. 559 ; 3 Carrington & Kirwan, 98; 4 Cox, C. C. 193.; 1 Eng. Law and Eq. Kep. 659; 1 Temple & Mew, C. C. 279. 132 FALSE PRETENCES. [CHAP. XIV. B. in the county of S., laborer, on the first day of June in the year of our Lord , at B. aforesaid, in the county aforesaid, unlawfully, knowingly, and designedly did falsely pretend to one C. D. that John Tidd Pratt, Esquire, the bar- rister-at-law for the time being appointed to certify the Rules of the Savings Banks, had certified that the Rules of a cer- tain Friendly Society, that is to say, a certa,in Sick Society, who had agreed to meet at the house of the said C. D. at B. aforesaid, in the county aforesaid, were in conformity to law, and with the provisions of the Act tenth of George the Fourth, chapter fifty-six, as amended by the Act fourth and fifth Wil- liam the Fourth, chapter forty, and that the said A. B. had paid to the said John Tidd Pratt the sum of fifty dollars for such certificate ; by means of which said several false pre- tences the said A. B. did then and there unlawfully, know- ingly, and designedly obtain from the said C. D. the sum of twenty-five dollars, of the moneys of B. F., with the intent thereby then and there to cheat and defraud the said E. F. Whereas, in truth and in fact, the said John Tidd Pratt had not certified that the Rules of the said Society were in confor- mity to law, and with the provisions of the said Act the tenth of George the Fourth, chapter fifty-six, as amended by the Act of the fourth and fifth of William the Fourth, chapter forty, as the said A. B. then and there well knew ; and where- as, in truth and in fact, the said Rules had not at any time been submitted to the said John Tidd Pratt for the purpose of his so certifying as aforesaid, as the said A. B. then and there well knew ; and whereas, in truth and in fact, the said A. B. ,had not paid to the said John Tidd Pratt the sum of fifty dollars, or any sum of money whatsoever for such cer- tificate as aforesaid ; contrary to the form of the statute in such case made and provided. CHAP. XIV.] FALSE PRETENCKS. 133 24. Obtaining money by means of a false warranty of the weight of goods} The jurors, etc., upon their oath present, that A. B. late of B. in the county of S., trader, on the first day of June in the year of our Lord , at B. aforesaid, in the county afore- said, unlawfully, knowingly, and designedly did falsely pre- tend to C. D. that a certain quantity of coals, which the said A. B. then and there delivered to the said C. D., weighed one ton and ten hundred weight, and that the said coals were then and there worth the sum of fifteen doUars ; by means of which said false pretences the said A. B. did then and there unlawfully, knowingly, and designedly obtain from the said C. D. the sum of fifteen dollars, of the money of the said C. D., with intent then and there to cheat and defiraud the said C. D. of the same. Whereas, in truth and in fact, the said coals did not weigh one ton and ten hundred weight; and whereas, in truth and in fact, the said coals were not worth the sum of fifteen dollars; and whereas, in truth and in fact, the said coals weighed only one ton and five hundred weight, and were not worth more than twelve dollars, as the said A. B. then and there well knew ; contrary to the form of the stat- ute in such case made and provided. 25. Obtaining money by a false warranty of goods? The jurors, etc., upon their oath present, that A. B. late of B. in the county of S., trader, on the first day, of June in the year of our Lord , at B. aforesaid, in the county afore- ' " Although it was formerly supposed that such a case as this was not a falee pretence within the statute, it is quite clear that it is ; and there never was,, in fact, any express decision to the contrary ; the supposed case of Rex f . Bead, 7 Carrington & Payne, 848, on which such a notion was founded, never having been considered by the judges." See per Lord Denman, C. J., in Keglna v. Hamilton, 9 Queen's Bench Eep. 271 ; 2 Cox, C. C. 11. ^ See Regina v. Ball, Carrington & Marshman, 249. 12 134 FALSE PRETENCES. [CHAP. XIV. said, unlawfully, knowingly, and designedly did falsely pre- tend to C. D., that a watch then and there produced by the said A. B., and offered for sale to the said C. U. was a silver •watch, and was then and there of the value of fifty dollars ; by means of which said false pretences the said A. B. did then and there unlawfully, knowingly, and designedly obtain from the said C. D. the sum of fifty dollars, of the money of the said C. D., with intent then and there to cheat and defraud the said C. D. of the same. "Whereas, in truth and in fact, the said watch was not a silver watch, nor was the same then and there of the value of fifty dollars, as the said A. B. then and there well knew ; contrary to the form of the statute in such case made and provided. 26. Falsely pretending that goods were of a particular quality.^ The jurors, etc., upon their oath present, that A. B. late of B. in the county of S., trader, at the time of the making of the false pretences by him hereinafter mentioned, had in his possession and offered for sale, divers pounds weight of cheese of little value and of inferior quality ; and also had in his pos- session divers pieces of cheese called " tasters," of good flavor, taste, and quality. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said A. B., being so thereof possessed, on the first day of June in the year of our Lord , at B. aforesaid, in the county aforesaid, unlawfully, knowingly, and designedly did falsely pretend to one C. D. that the said pieces of cheese called " tasters," which the said A. B. then and there delivered to the said C. D., were part of the cheese which the said A. B. then and there offered for sale, and that the said last-mentioned cheese was of good and excellent quality, flavor, and taste, and that every pound weight of the said cheese so offered for sale by the said A. B. was of the value of twelve cents ; by means of which said false pretences the said A. B. did then and there unlawfully, ' See Regina v. Abbott, 1 Denison, C. C. 273 ; 2 Cox, C. C. 430 ; 2 Car- rington & Kirwan, 630. CHAP. XIV.J FALSE PRETENCES. 135 knowingly, and designedly obtain from the said C. D. certain money, to wit, the sum of twenty dollars, of the moneys of the said C. D., with intent then and there to cheat and de- fraud the said C. D. of the same. Whereas, in truth and in fact, the said pieces of cheese called " tasters," which the said A. B. delivered to the said C. D., were not part of the cheese w^hich the said A. B. offered for sale ; and whereas, in truth and in fact, the said cheese offered for sale was not of good and excellent quality, flavor, and taste ; and whereas, in truth and in fact, every pound weight of the said cheese offered for sale by- the said A. B. was not of the value of twelve cents, as the said A. B. then and there well knew ; contrary to the form of the statute in such case made and provided. 27. Attempting to obtain money by means of false pretences. The jurors, etc., upon their oath present, that A. B. late of B. in the county of S., trader, on the first day of June in the year of our Lord , at B. aforesaid, in the county afore- said, unlawfully, knowingly, and designedly did falsely pre- tend to C. D. that the said A. B. was then and there sent to the said C. D.- by one E. F. to request the loan of ten dollars, and that the said E. F. desired the said A. B. to say that the said E. F. would repay the same to the said C D. on the next following day ; by means of which said false pre- tences the said A. B. did then and there unlawfully, know- ingly, and designedly attempt and endeavor to obtain from the said C. D. certain money, to wit, the sum of ten dollars of the moneys of the said C. D., with intent then and there to cheat and defraud the said C. D. of the same. Whereas, in truth and in fact, the said A. B. was not sent to the said C. D. by the said E. F. to request the loan of ten dollai-s, or any other sum of money ; and whereas, in truth and in fact, the said E. F. did not say or desire the said A. B. to say that the said E. F. would repay the same to the said C. D. on the next following day, as the said A. B. then and therp well knew ; contrary to the form of the statute in such case made and provided. CHAPTER XV. COMPOUNDING OFFENCES. The compounding of felonies or other crimes or misde- meanors, ho.wever they may affect the interests of individuals, is illegal, inasmuch as it impedes the course of public jus- tice ; and it is, therefore, the proper subject of an indictment.^ The accepting of a promissory note, signed by the party guilty of larceny, as a consideration for not prosecuting, is sufficient to constitute the offence.^ The compounding of misdemeanors, as it also is a perver- sion or defeating of public justice, is in like manner the sub- ject of an indictment by the common law.^ In England, in some cases where the offence principally and more imme- diately affects some individual, as batteries and libels, if the ^ 1 Gabbett, Crim. Law, 240 ; 1 Hawkins, P. C. ch. 7. In Massachusetts, the Rev. Sts. ch. 128, § 21, provide against taking, but not against giving a gratu- ity on an agreement to compound for a crime. 1 Deacon, Crim. Law, 267, 268; Rex v. Southerton, 6 East, 126. This was, indeed, the misdemeanor against which the ancient common law was especially directed, particularly in the case of theft or robbery, where the owner of the thing stolen gives a reward for its restoration, and agrees not to prosecute, or agrees with any one, on the thing being restored, to Eisk no questions ; that is, to favor the concealment of the crime. Report of the Massachusetts Criminal Law Com- missioners, Title, Obstructing and Perverting the Course of Justice, § 15, note id). ' Commonwealth v. Pease, 16 Mass. (Rand's ed.), 91. ' Jones V. Rice, 18 Pickering, 440; Collins v. Blantem, 2 Wilson, 349 ; 1 Smith's Leading Cases, (Am. ed. 1852,) 413. Edgecombe v. Rodd, 5 East, 302 ; Eeir v. Leeman, 6 Queen's Bench Rep. 308 ; 1 Deacon, Crim. Law, 269. CHAP. XV.] COMPOUNBING OFFSNCES. 137 public remedy by prosecution be adopted, the court will sometimes permit a reference, or allow the defendant "to speak with the prosecutor," as it is termed, before any judg- ment is pronounced ; and if the prosecutor declares himself satisfied, to inflict but a trivial punishment. But this is not done until after conviction, and the reason assigned is, that it saves the prosecutor the trouble and circuity of a civU action to recover amends for his private injury.^ In a recent English case, after a review of the authorities, the rule was laid down, that the law will permit a compromise of all offences, though made the subject of a criminal prosecution, for which offences the injured party might sue and recover damages in an action. But, if the offence is of a public nature, no agreement can be valid that is founded on the consideration of stifling a prose- cution for a? But it is clear that every thing in the nature of compound- ing a misdemeanor must have the sanction of the court before which the offender is brought to trial.^ " The power to stop prosecutions," said Putnam, J., " is vested in the law-officers of the Commonwealth, who use it with prudence and discre- tion. If it were given to the party injured, who might be the only witness who could prove the offence, he might extort for his own use money which properly should be levied as a fine upon the criminal party for the use of the Commonwealth." * But where after an alleged compounding, it appeared that the party charged had afterwards prosecuted for the felony to con- viction, an acquittal was directed.^ ' 1 Gabbett, Grim. Law, 241. In some of the United States, provision is made by statute, for compromising certain misdemeanors, in certain cases. See Kev. Sts. of Mass. ch. 136, § 25, 26 ; St. 1846, ch. 198. ' Keir v. Leeman,6 Queen's Bench Rep. 308 (1844). ' Beeley v. Wingfield, 11 East, 46. See Kingsbury v. Ellis, 4 Gushing, 578, 580. * Jones V. Rice, 18 Pickering, 440, 441. " Rex V. Stone, 4 Garrington & Payne, 379. "In some of the precedents, the allegation that the party has not prosecuted the offender is omitted, but it may be- ^ question, whether an indictment so framed would be good ; be- cause the offence against the public is not the taking of money from a thiefj 12* 138 COMPOUNDINS OFFENCES. [CHAP. XV. Compounding informations on penal statutes is an offence at common law.^ Indictment for compounding a felony? The jurors, etc., upon their oath present, that heretofore, to wit, on the first day of June in the year of our Lord , at B. in the county of S., one A. the wife of J. N. feloniously stole, took, and carried away one silver tankard, of the value of fifty dollars, of the goods and chattels of one J. S. ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. And that the said J. S. late of B. aforesaid, in the county aforesaid, laborer, well knowing the said felony to have been by the said A. so as aforesaid done and committed, but contriving and intend- ing unlawfully and unjustly to pervert the due course of law and justice in that behalf, and to cause and procure the said A., for the felony aforesaid, to escape with impunity, after- wards,* to wit, on the day and year aforesaid, at B. aforesaid, in the county aforesaid, unlawfully, and for wicked gain's sake, did compound the said felony with the said J. N. the husband of the said A., and then and there did exact, take, receive, and have of the said J. N. the sum of ten dollars, for and as a reward for compounding the said felony, and desist- ing from all further prosecution against the said A. for the felony aforesaid ; and that the said J. S. on the day and year but the letting such thief escape without punishment. Indeed, if this alle- gation had been mere surplusage, and put in as matter of aggravation, as. is sometimes done in indictments for misdemeanor, the learned judge would not have stopped the case on this objection." Reporters' note to Kex v. Stone. ^ Boothby, Crim. Law, (London ed. 1854,) 80 ; 1 Gabbett, Crim. Law, 241 ; 1 Deacon, Crim. Law, 269. ^ Archbold, Crim. PL (Am. ed. 1846), 693 ; Matthews' Crim. Law, 450. ' Where the felony was laid on a day subsequent, in date, to that on which it was charged to have been compounded, although charged to have been compounded " afterwards," judgment was arrested. The State v. Dandy, 1 Brevard, 395. CHAP. XV.j COMPOUNDING OFFENCES. 139 aforesaid, at B. aforesaid, in the county aforesaid, did there- upon desist, and from that time hitherto hath desisted, from all further prosecution of the said A. for the felony aforesaid ; to the great hinderance of justice, and against the peace of said Commonwealth. CHAPTER XVI CONSPIRACY. An indictment for a conspiracy generally charges, that the defendants "did conspire, combine, confederate, and agree together ; " though it seems that other words of the same import would be equally proper.^ " The peculiar character of this offence," said Dewey, J., in the case of Commonwealth V. Eastman,^ which is a leading case in Massachusetts, " has fully justified, in certain cases of conspiracy, a departure from the ordinary rules of criminal pleading. The means proposed to be used to effect a criminal purpose are not, in all cases, to be set out, and are not, in all cases, required to be proved ; nor are they a necessary element of the crime of conspiracy. To a certain extent, the rules upon the subject are uncontro- verted. If the alleged conspiracy be an unlawful agreement of two or more persons to do a criminal act, which is a well- known and recognized offence at common law, so that by reference to it as such, and describing it by the term by which it is familiarly known, the nature of the offence is clearly indi- cated, in such a case, a charge of conspiracy to commit the offence, describing it in general terms, will be proper. " On the other hand, if the agreement or combination be to do an act, which is not unlawful in itself, by the use of unlawful means, those means must be particularly set forth, or the indictment will be bad. The question of doubt, and upon which there are conflicting authorities, is the case of a conspiracy to do a wrongful act, in violation of the rights of ' 1 Gabbett, Crim. Law, 253 ; 1 Deacon, Grim. Law, 209. • 1 Gushing, 189, 223, (1848). CHAP. XVI.] CONSPIRACY. 141 another, including under the denomination of wrongful acts, those which are unlawful, because they are in violation of some statute provision, but which are not offences at common law." In this case, the principle was adopted, and since affirmed,^ that if the .object of the conspiracy be to do an act which is an offence merely by statute, the intended purpose must in such case be set forth with so much detail, as may be necessary to bring it within the description of the statute offence. And, as the words "cheat and defraud" do not necessarily import any offence, either by statute or at common law, therefore an indictment for a conspiracy, in which the object is alleged to be to " cheat and defraud," must set forth in detail such further allegations, as will show the object to be an offence, either by statute or at common law.^ In Rex ' Commonwealth v. Shedd, 7 Gushing, 514, (1851). ' In this case it was held not to be a sufficient statement of the offence, in an indictment for a conspiracy to cheat, to allege that the defendants con- spired together to cheat and defraud C. D. of his goods ; or to acquire and get into their possession the goods of C. D., under color and pretence of buy- ing the same ; or to get possession of the goods of C. 'D. upon trust and credit, and then to remove and transport them out of the Commonwealth. In delivering the opinion of the Court in Commonwealth v. Shedd, 7 Gush- ing, 514, Dewey, J., said : " The gist of the offence is a charge of conspiracy, being the act of conspiring together, and not the acts subsequently done in pursuance thereof, the consequence has been the introduction of certain forms of charging this offence, doubtful in their character, and as to which there has not been an entire uniformity of decisions. Under the idea that the conspiracy is alone the substantial crime charged, the practice had become somewhat common to charge the offence in the most general terms, as that of a conspiracy to the prejudice of the rights of others, overlooking the distinction, whether the object of the conspiracy was a criminal object, or the criminality consisted in accomplishing an object, not in itself a crime, by criminal means. " The recent decisions in this Commonwealth have, to a certain extent at least, settled what was before a matter of doubt, and, so far as the principles of those decisions are applicable to this case, they must govern it. 1. It is well settled that a general allegation, that two or more persons conspired to effect an object criminal in itself, as to commit a misdemeanor or a felony, is quite sufficient, although the indictment omits all charges of the particular means to be used. 2. It is equally well settled, that a general charge of a conspiracy to effect an object not criminal, is not sufficient. The charge of 142 CONSPIRACY. [chap. XVI. V. Giiy a leading English case, where the indictment charged such a conspiracy is to be accompanied with the further statement of the means the conspirators concerted and agreed to use to effect the object ; and those means must appear to bQ criminal. 3. The charge of a conspiracy to cheat and defraud A. does not, ex vi termini, import a criminal object. Cheat- ing and defrauding are ambiguous terms, and as well applicable to civil con- tracts, as to injuries inflicted wholly by breach of criminal law. A man may cheat and defraud another in the sale of articles of merchandise, and yet the case be one of civil wrong merely. It is therefore held, that it is not enough to charge generally the purpose of the conspiracy to be ' to cheat and de- fraud ; ' but the means must also be set forth, that it may be seen that it was a conspiracy to effect the proposed object by illegal means. This is directly settled in the cases of Commonwealth v. Eastman, 1 Gushing, 189, and Commonwealth v. Hunt, 4 Metcalf, 111, 125. Hence it results, that the general charge of a conspiracy to cheat and defraud Joel Church, which is the form of the present indictment, is insufficient, and that the indictment will not authorize the Court to enter a judgment and sentence thereon, unless the defect is aided by the allegation of various overt acts of the parties alleged to have been done in pursuance of the conspiracy. " The view which the Court have taken of this question, in the cases of Commonwealth i'. Hunt and Commonwealth v. Eastman, seems to require, that in cases of indictment for conspiracy the offence should be fully charged, independently of any overt acts alleged to have been done in pursuance of the conspiracy. Thus, in the case of Commonwealth v. Hunt, it is said by the Court, that the indictment must ' set out an offence complete within itself, without the aid of any averment of illegal acts done in pursuance of such an agreement ; and that an illegal combination, imperfectly and insutfi- ciently set out in the indictment, will not be aided by averments of acts done in pursuance of it.' " The great difficulty in giving effect to the allegation of overt acts, in an indictment for conspiracy, on a motion in arrest of judgment for insufficiency of the indictment, is this ; that overt acts are merely alleged by way of aggra- vation of the offence, and though alleged they need not be proved, and the alleged conspiracy might be found by the jury, without proof of the precise overt acts charged to have been done in pursuance of the conspiracy. " The indictment in the present case, charging only, in general terms, a conspiracy ' to cheat and defraud one Joel Church of divers sums of money,' and setting forth no illegal means, agreed upon or concerted by the parties to effect the same, as a part of such conspiracy, but merely setting forth overt acts of the parties, does not charge a conspiracy to do a criminal act, or to effect an object by any criminal means set forth upon the face of the indict- ment." » 2 Barnewall & Alderson, 204, (1818). CHAP. XVI.] CONSPIRACY. 143 that the defendants conspired, by divers false pretences, and subtle means and devices, to obtain and acquire for them- selves from P. D. and G. D. divers large sums of money, of the said P. D. and G. D. and to cheat and defraud them thereof, it was holden that, the gist of the offence being the conspiracy, it was quite sufficient to state that fact, and its object, and not necessary to set out the specific pretences.^ This case has been repeatedly examined and reviewed, and may now be regarded as the settled law, in England.^ But the weight of authority, in America, seems to be strongly in '■ This form of indictment " is the most general which has been held admis- sible." Per Lord Denman, C. J., in Kegina v. Parker, 3 Queen's Bench Kep. 298. In the same case, Williams, J., said, "It has been always thought that in Rex v. Gill, the extreme of laxity was allowed." " Regina v. King, 7 Queen's Bench Rep. 782, 795, (1844, 1845) ; Regina V. Gompertz, 9 Queen's Bench Rep. 824, (1846). In this case, as reported in 2 Cox, C. C. 145, 155, Lord Denman,* C. J., said, " One count at least is good, on the authority of Rex v. Gill, which authority has never been over- ruled ; it is founded on excellent reason given by Lord Tenterden and Mr. Justice Holroyd in that case ;^ and it has always been recognized, though not without regret, because that form of indictment may give too little informa- tion to the accused ; which was the observation made in Rex v. Biers, 1 Adolphus & Ellis, 327. But even from expressions there used, and much of what has been said in later cases, it appears plainly that the court has never doubted the correctness of the decision in the case of Rex v. Gill." And in Sydserff I'. Regina, 11 Queen's Bench Rep. 245, (1847,) Chief Justice Wilde said : " The second count of this indictment in this case was objected to as being too general ; and Rex v. Biers was relied on in support of the objec- tion, and as overruling Rex v. Gill, from which we think the present case not distinguishable. But, upon referring to the judgment in Rex v. Biers, there appears strong reason to doubt whether it did not go wholly on the one objection to the special counts. Neither Rex v. Gill, nor any other authority at all bearing on the point, was referred to in the judgment ; and it appears distinctly from the recent case of Regina v. Gompertz, that Rex v. Biers has never been considered by the Court of Queen's Bench as overruling Rex v. Gill." And see Regina v. Parker, 3 Queen's Bench Rep. 202 ; 2 Gale v. Davison, 709 ; Rex v. Peck, 9 Adolphus & Ellis, 686 ; 1 Perry v. Davison, 508 ; Regina u. Kenrick, 5 Queen's Bench Rep. 49 ; Davison & Merivale, 208 ; Rex v. Powle, 4 Carrington & Payne, 592 ; Rex v. Richardson, 1 Moody & Robinson, 402 ; Regina v. Whitehouse, 6 Cox, C. C. 38. 144 CONSPIKACY. [chap. X-^T. favor of the doctrine laid down in Commonwealth v. East- man.i It is usual to set out the overt acts ; that is to say, those acts which may have been done by any one or more of the conspirators, in order to effect the common purpose of the conspiracy. But this is not essentially necessary; the con- spiracy itself is the offence ; and whether any thing have been done in pursuance of it or not, is immaterial.^ An indictment for a conspiracy to obtain goods by false pretences, is insufficient, unless it state whose property the goods were.2 If the indictment be general, the Court wUl order the prosecutor to furnish a bill of particulars of the charges to be relied upon, and that bill of particulars should give the same information to the defendants that would be given by a special count; but the Court will not compel him to state the specific acts to be proved, and the time and place at which they are alleged to have occmred.* ' See Commonwealth v. Hunt, 4 Metcalf, 111 ; Hartmanfl v. The Common- wealth, 5 Barr, 60 ; Clary v. The Commonwealth, 4 Barr, 210 ; Twitchell v. The Commonwealth, 9 Barr, 211 ; Lambert v. The People, 9 Cowen, 578 ; The State v. Roberts, 34 Maine, 320; The State v. Burnham, 15 New Hampshire, 396 ; The State v. Hewett, 31 Maine, 396 ; The State v. Ripley, 31 Maine, 386. See The State v. Rickey, 4 Halsted, 293. See also The State V. Buchanan, 5 Harris & Johnson, 317. ' Commonwealth v. Eastman, 1 Cushing, 180; Commonwealth v. Shedd, 7 Cashing, 514 ; Regina v. Kenrick, 5 Queen's Bench Rep. 49 ; Davison & Merivale, 208 ; Rex v. Seward, 1 Adolphus & Ellis, 706 ; The State v. Rip- ley, 31 Maine, 386 ; March v. The People, 7 Barbour, 391 ; Clary v. The Commonwealth, 4 Barr, 210; Commonwealth v. McKisson, 8 Sergeant & Rawle, 420. See Re^na v. King, 7 Queen's Bench Rep. 782, 808, 809 ; Wright V. Regina, 14 Queen's Bench Rep. 148 ; Rex v. Spragg, 2 Burrow, 999. ' Regina v. Parker, 3 Queen's Bench Rep. 292 ; 2 Gale & Davison, 709. * Rex V. Hamilton, 7 Carrington & Payne, 448 ; Regina v. Rycroft, 6 Cox, C. C. 76, (1852). CHAP. XVI.] CONSPIRACT. 145 1. For a conspiracy to indict prosecutors for keeping a bawdy- JiQuse, and extorting money from them on condition that such prosecution should be foregone.^ The jurors, etc., upon their oath present, that W. H. late of the parish of Saint Margaret, "Westminster, in the county of Middlesex, and within the jurisdiction of the Central Crim- inal Court, laborer, and J. P. late of the same place, laborer, wickedly devising and intending to injure one T. T. one J. W. and one G. G., and to extort and obtain from them divers moneys, heretofore, to wit, on the twenty-third day of AptU, in the year of our Lord , at the parish aforesaid, in the county aforesaid, and within the jurisdiction of the said Central Criminal Court, . with force and arms, did among themselves, unlawfully, wickedly, and corruptly conspire, com- bine, confederate, and agree together to accuse, charge, and indict the said T. T., J. W., and G. G., together with one M. T., one S. W., and one M. L., for keeping a common bawdy-house, and by means of such charge, accusation, and indictment, to obtain and acquire to themselves from the said T. T., J. W., and G. G., divers of the moneys of the said T. T., J. W., and G. G. respectively, and to de- prive them thereof. And the jurors aforesaid, upon their oath aforesaid, do further present, that, in pursuance of the said conspiracy, the said W. H. and J. P. did afterwards, to wit, on the day and year aforesaid, in the Court of our Lady the Queen, before the Queen herself, then holden at Westminster, in the county of Middlesex, and within the jurisdiction of the said Central Criminal Court, prefer a bill of indictment to a certain grand jury then sworn and charged to inquire for our said Lady the Queen, for the body of the county of Middlesex, against the said T. T., J. W., G. G., M. T., S. W., and M. L., for keeping a common bawdy-house, and did then and there cause the said grand jury to find and present the said indictment against the said T. T., J. W., ' 2 Cox, C. C. Appendix, p. xxv. 13 146 CONSPIKACY. [chap. XVI. G. G., M. T., S. W., and M. L. ; to the great damage of the said T. T., J. W., and G. G., and each of them, to the evil example of all others in the lilie case offending, and against the peace, etc. Second Count. — And the jurors aforesaid, upon their oath aforesaid, do further present, that the said W. H. and J. P., wick- edly devising and intending as aforesaid, heretofore, to wit, on the day and year aforesaid, at the parish and county aforesaid, and within the jurisdiction of the said Central Criminal Court, did again, with force and arms, unlawfully, wickedly, and cor- ruptly conspire, combine, confederate, and agree together falsely to charge, accuse, and indict, and procure to be in- dicted, the said T. T., J. W., and G. G, for keeping a com- mon bawdy-house, and by means of such charge, accusation, and indictment, to obtain and acquire to themselves of and from the said T. T., J. W., and G. G., and each of them, divers of the moneys of the said T. T., J. W., and G. G., respectively ; to the great damage of the said T. T., J. W., and G. G., and each of them, to the evil example of all others in the like case offending, and against the peace, etc. Third Count.— And the jurors aforesaid, upon their oath aforesaid, do further present, that the said W. H. and J. P., wickedly devising and intending as aforesaid, heretofore, to wit, 'on the day and year aforesaid, at the parish and county aforesaid, and within the jurisdiction of the said Central Criminal Court, did again, with force and arms, unlawfully, wickedly, and corruptly conspire, combine, confederate, and agree together falsely to charge, accuse, and indict, and pro- cure to be indicted, the said T. T., J. W., and G. G., for keep- ing a common bawdy-house ; to the great damage of the said T. T., J. W., and G. G., and each of them, to the evil example of all others in the like case offending, and against the peace, etc. Fourth Count. — And the jurors aforesaid, upon their oath aforesaid, do further present, that the said W. H. and J. P., wickedly contriving and intending as aforesaid, heretofore, to wit, on the day and year aforesaid, at the parish and county aforesaid, and within the jurisdiction of the said Central CHAP. XVI.] CONSPIRACY. 147 Criminal Court, did again, with force and arms, unlawfully and corruptly conspire, combine, confederate, and agree to- gether, by means of divers false pretences and subtle means and devices, to obtain and acquire to themselves of and from the said T. T., J. W., and G. G., and each of them, divers of the moneys of the said T. T., J. W., and G. G. respectively, and to cheat, deprive, and defraud them thereof; to the great damage of the said T. T., J. W., and G. G., and each of them, to the evil example of all others in the like case offending, and against the peace, etc. Fiflh Count. — And the jurors aforesaid, upon their oath aforesaid, do further present, that the said W. H. and J. P., wickedly contriving and intending to injure one J. W., and to extort and obtain from him divers moneys, heretofore, to wit, on the sixteenth day of July in the year of our Lord , at the parish of Saint Margaret, Westminster, in the county of Middlesex, and within the jurisdiction of the Central Criminal Court, with force and arms, did, between themselves, unlaw- fully, wickedly, and corruptly conspire, combine, confederate, and agree together, to charge, accuse, and indict the said J. W., together with one F. A., one R. J., one M. S., and S. G., for keeping a common bawdy-house, and also a common, ill- governed, and disorderly house, and, by means of such charge, accusation, and indictment, to obtain and to acquire to them- selves from the same J. W., divers of the "moneys of the said J. W., and to deprive him thereof. And the jurors aforesaid, upon their oath aforesaid, do further present, that, in pursu- ance of the said conspiracy, the said W. H. and J. P. did afterwards, to wit, on the day and year last aforesaid, at the adjourned general quarter-sessions of the peace for the county of Middlesex, holden in and for the said county of Mid- dlesex, at the Guildhall, in the Broad Sanctuary, within the city and liberty of Westminster, in the said county of Middlesex, and within the jurisdiction of the said Central Criminal Court, prefer an indictment to the grand jury, then and there assembled in and for the said county of Middlesex, against the said F. A., J. W., R. J., M. S., and S. G., for keeping a common bawdy-house, and also for keeping a com- 148 CONSPIKACY. [chap. XVI. mon, ill-governed, and disorderly house, and did then and there cause the said grand jury to find and present the said indict- ment against the said F. A., J. W., R. J,, M. S., and S. G. ; to the great damage of the said J. W., to the evil example of all others in the like case offending, and against the peace, etc. Sixth Count. — And the jurors aforesaid, upon their oath aforesaid, do further present, that the said W. H. and J. P., wickedly contriving and intending as last aforesaid, hereto- fore, to wit, on the day and year last aforesaid, at the parish last aforesaid, in the city, liberty, and county last aforesaid, and within the jurisdiction of the said Central Criminal Court, did again, with force and arms, unlawfully, wickedly, and corruptly conspire, combine, confederate, and agree to- gether to charge, accuse, and indict, and procure to be indicted, the said J. W. for keeping a common bawdy-house, and also a common, ill-governed, and disorderly house, and by means of such charge, accusation, and indictment, to obtain, extort, and acquire to themselves of and from the said J. W. divers of the moneys of the said J. W., and to deprive him thereof; to the great damage of the said J. W., to the evil example of all others in the like case offending, and against the peace, etc. Seventh Count. — And the jurors aforesaid, upon their oath aforesaid, do further present, that the said W. H. and J. P., wickedly contriving and intending as last aforesaid, hereto- fore, to wit, on the day and year last aforesaid, at the parish last aforesaid, within the city, liberties, and county last afore- said, and within the jurisdiction of the said Central Criminal Court, did again, with force and arms, unlawfully and cor- ruptly conspire, combine, confederate, and agree together, by means of divers false pretences and subtle means and devices, to extort, obtain, and acquire to themselves of and from the said J. W. divers of the moneys of the said J. W., and to cheat, deprive, and defraud him thereof; to the great damage of the said J. W., to the evil example of all others in the like case offending, and against the peace, etc. Eighth Count. — And the jurors aforesaid, upon their oath aforesaid, do 'further present, that the said W. H. and J. P., not regarding the laws of this State, and wickedly and cor- CHAP, x^t:.] conspiracy. 149 ruptly devising and intending to pervert the same laws to unjust, oppressive, and extortionate ends and purposes, here- tofore, to wit, on the twenty-third day of April, in the year of . our Lord , at the parish of Saint Margaret, Westminster, in the county of Middlesex, and within the jurisdiction of the said Centra] Criminal Court, unlawfully did conspire, combine, confederate, and agree together to cause it to be presented, upon the prosecution of the. said W. H. and J. P., upon the oaths of a certain grand jury, to wit, a certain graiid jury then sworn and charged to inquire for, etc., for the body of the said county of Middlesex, in the Court of, etc., and within the juris- diction of the said Central Criminal Court, that one T. T., one J. W., and one G. G. had kept, and then were keeping, within the said county of Middlesex, a certain common bawdy-house, and a certain common, ill-governed, and disorderly house, to the common nuisance of the liege subjects of our Lady the Queen, and having caused the said presentment to be made, as in this count aforesaid," afterwards, for money, lucre, and gain, to be paid, made, and given by the said T. T., J. W., and G. G., to the said "W. H. and J. P., corruptly, unlawfully, and contrary to the due course of law, to forego and altogether abandon the prosecution of the said presentment and indictment ; to the gain and profit of the said W. H. and J. P., to the great hinderanee and perversion of public justice, to the evil ex- ample of all others in the like case offending, and against the peace, etc. Ninth Count. — And the jurors aforesaid, upon their oath aforesaid, do further present, that the said W. H. and J. P., not regarding the laws of this State, and wickedly and cor- ruptly devising and intending to pervert the same laws to unjust, oppressive, and extortionate ends and purposes, here- tofore, to wit, on the sixteenth day of July in the year of our Lord , at the parish of Saint Margaret, Westminster, in the city and liberty of Westminster, in the county of Mid- dlesex, and within the jurisdiction of the said Central Criminal Court, unlawfully did conspire, combine, confederate, and agree together to cause it to be presented by a certain grand jury, to wit, then sworn and charged to inquire for the said State, 13* 150 CONSPIBACT. [chap. XVI. at the adjourned general quarter-sessions of the peace for the county of Middlesex, holden in and for the said county of Middlesex, at the Guildhall in the Broad Sanctuary, within the said city and liberty of Westminster, in the said county of Mid- dlesex, and within the jurisdiction of the said Central Criminal Court, that one J. W. had kept, and then was keeping, within the said county of Middlesex, a certain common bawdy-house, and a certain common, ill-governed, and disorderly house, to the common nuisance of the citizens of said State, and hav- ing caused the said last-mentioned presentment so to be made afterwards, for money, lucre, and gain, to be paid and given by the said J. W. to the said W. H. and J. P., corruptly, unlawfully, and contrary to the due course of law, to forego and altogether to abandon the prosecution of the said pre- sentrhent ; to the gain and profit of the said W. H. and J. P., to the great hinderance and perversion of public justice, to the evil example of all others in the like case offending, and against the peace, etc. 2. For a conspiracy to defraud a Railway Company, by travel- ling without a ticket on some portion of the line, obtaining a ticket at an intermediate station, and then delivering it up • at the terminus, as if no greater distance had been travelled over by the passenger than from such inter- mediate station to the terminus.^ The jurors, etc., upon their oath present, that heretofore and before and at the time of the committing of the offence hereinafter next mentioned, the London and North- Western Railway Company used, worked, and employed a certain railway called the London and North- Western Railway, for the purpose of conveying passengers and goods thereon for hire, part of which said railway runs from a certain railway station at Birmingham, in the county of -Warwick, to a cer- tain other railway station, called the Willesden Station, to wit, at Willesden, in the county of Middlesex, thence to a certain * 4 Cox, C. C. Appendix, p. xxxviii. CHAP. XVI.] CONSPIRACY. 151 other railway station, called the Camden Station, to wit, at th6 parish of Saint Pancras, in the said comity of Middlesex, and thence to a certain other railway station, called the Eus- ton Station, to wit, at the parish last aforesaid, in the county last aforesaid. That at. the time of the committing of the offence hereinafter next mentioned, the said Company were lawfully entitled to have, demand, and receive of and from every person conveyed by the said Company as a third class passenger over that part of the said railway which runs from the said station at Birmingham to the said Willesden Station, the sum of two dollars, and of and from every person conveyed as a third class passenger over that part of the said railway •which runs from the said Willesden Station to the said Euston Station, and no further or greater distance, the sum of twenty-five cents. That before and at the time of the commit- ting of the offence hereinafter next mentioned, the said Com- pany, upon payment of the proper charges in that behalf, had been and were in the habit of granting to persons requiring to be conveyed by the said Company, as passengers upon the said railway, certain tickets denoting the railway stations from and to which such persons respectively might require to be conveyed, which said tickets, when delivered up to the said Company at the said stations, denoted thereupon as the sta- tion to which such persons required to be conveyed, or at any other station between such last-mentioned stations and the station from which such persons respectively required to be conveyed, were vouchers in favor of such persons delivering . the same, and denoted and were accepted and received by the said Company, in the absence of notice to the said Company, as vouchers denoting that such persons had paid and dis- charged all the proper charges due to the said Company iii respect to their conveyance as passengers upon the said rail- way. That heretofore and before and at the time of the com- mitting of the offence hereinafter next mentioned, to wit, on the fourth day of January in the year of our Lord , one William Williams, at his own request and instance, had been conveyed by the said Company as a third class passenger over that part of the said railway which runs from the said 152 CONSPIBACY. [chap. XVI* station at Birmingham to the said "Willesden Station, where- upon the said William Williams then and there became and was justly and truly indebted to the said Company in the said sum of two dollars, and which said sum of two dollars the said Company were then and there lawfully entitled to have, demand, and receive of and from the said William Wil- liams for and in respect of such his conveyance as aforesaid. Aijd that the said William Williams, late of the parish of Willesden, in the county of Middlesex, and within the juris- diction of the said Central Criminal Court, laborer, and Wil- liam Brown, late of the same place, laborer, and divers other evil-disposed persons whose names to the jurors aforesaid are as yet unknown, wickedly devising and intending to cheat, deceive, injure, and defraud the said Company in the prem- ises, afterwards, to wit, on the day and year aforesaid, and whilst the said William Williams was 'so justly and truly indebted to the said Company as aforesaid, and whilst the said Company were so entitled to have, demand, and receive of and from the said William Williams the said sum of two dollars as aforesaid, in the parish of Willesden aforesaid, in the county of Middlesex aforesaid, and within the jurisdic- tion of the said Central Criminal Court, unlawfully did con- spire, combine, confederate, and agree together to purchase and procure of the said Company, at the said WiUesden Sta- tion, for the sum of twenty-five cents,, one of the said tickets, so granted by them as aforesaid, denoting that the person to whom such ticket had been granted, had required to be con- veyed from the said Willesden Station to the said Euston Station, and no further or greater distance upon the said rail- way, and that all the proper moneys due to the said Company in respect of such last-mentioned conveyance, had been paid and discharged. And afterwards, that the said William Williams and William Brown should travel together on the said railway from the said Willesden Station to the Camden Station, and thence to the said Euston Station, the said Cam- den Station being a railway station between the said Willesden Station and the said Euston Station, and should at the said Camden Station fraudulently and deceitfully produce such CHAP. XVI.] CONSPIEACT. 153 ticket to the said Company and their servants as a ticket granted to the said WUliam Williams at the commencement of his journey upon the said railway, as a voucher that the said "William Williams had paid and discharged all the proper charges due to the said Company in respect, of the conveyance of the said William Williams upon the said rail- way, and as well by means of the said ticket as by divers false pretences, unlawfully, deceitfully, and fraudulently to cause it falsely to appear to the said Company that the said William Williams had not been conveyed as a passenger any greater .or other distance upon the said railway than from the Willesden Station aforesaid to the said Camden Station ; and that the said William Williams had paid to the said Company all the proper charges for his conveyance as a pas- senger upon the said railway, and firaudulently and deceitfully to induce and persuade the said Company and theii- servants to accept and receive the said ticket in satisfaction and dis- charge of aU and every the charges to which the said William Williams was then and there liable in respect of such his con- veyance as aforesaid, and as a voucher to the effect that such charges had been fully paid and satisfied to the said Com- pany by the said William Williams, and in manner aforesaid to deceive, injure, and prejudice the said Company, and to defraud the said company of the said sum of two dollars, in which the said William Williams was so indebted as afore- said, and mutually to aid and assist one another in perfecting and putting in execution the said unlawful and wicked con- spiracy, combination, confederation, and agreement. That the said William Williams and William Brown, in firaudu- lent collusion with the said other evil-disposed persons in prosecution and pursuance of the said wicked and unlawful combination, conspiracy, confederacy, and agreement, did, on the fourth day of January in the year of our Lord , and whilst the said William Williams was indebted as aforesaid, purchase and procure of the said Company, at the said Wil- lesden Station, for the sum of twenty-five cents, a certain ticket denoting that the person to whom such ticket had been granted had required to be conveyed from the said Willesden 154 CONSPIEAOY. [chap. XVI. Station to the said Euston Station, and no further or greater distance on the said railway, and had paid all the proper charges for such conveyances, and afterwards did travel again on the said railway to the said Camden Station, being a rail- way station between the said Willesden Station and the said Euston Station, and there at the said Camden Station did produce and deliver the said ticket to one William Ludlow Penson, then and there being a servant of the said Company, as a ticket granted to the said William Williams at the com- mencement of his journey as a passenger on the said railway, and unlawfully, fraudulently, deceitfully, and injuriously offer the said ticket to the said William Ludlow Penson as a voucher to the effect that all the charges lawfully to be made by the 'said Company upon the said WiUiam Williams in respect of his conveyance upon the said railway had been paid and discharged by the said William Williams, and did thereby then and there endeavor to cheat and defraud the said Company of the said sum of two dollars, so due to them from the said William Williams for such conveyance of the said William Williarhs to the said Willesden Station as aforesaid; to the great injury and deception of the said Company, to the evil example, etc., and against the peace, etc. Second Count. — That heretofore, and before and at the time of the committing of the offence hereinafter next mentioned, the said William Williams was justly and truly indebted to the said London and North- Western Railway Company in the sum of two dollars, for the conveyance of the said Wil- liam Williams as a passenger on a certain part of the said London and North- Western Railway Company, that is to say, from Birmingham, in the county of Warwick, to Willes- den, in the said county of Middlesex. That the said WiUiam Williams and William Brown, afterwards, to wit, on the day and year aforesaid, being possessed of a certain ticket of no value to -the said Company, granted by the said Company, and denoting that the person having possession thereof was en- titled to be conveyed by the said Company on a certain other part of the said railway, that is to say, from Willesden afore- said to the said railway station called the Camden Station, CHAP. XTI.J CONSPIRACY. 155 and the/ice to the said station called the Euston Station, free of all charge for arid in respect of such conveyance ; after- wards, to wit, on the day and year aforesaid, and whilst the said William WiUiams was so justly and truly indebted as last aforesaid, at the parish of Saint Pancras aforesaid, in the county of Middlesex aforesaid, and within the jurisdiction of the said Central Criminal Court, unlawfully and wickedly did conspire, combine, confederate, and agree together, and with divers other evil-disposed persons, whose names to the jurors aforesaid are as yet unknown, unlawfully, knowingly, fraudu- lently, and deceitfully falsely to pretend and to cause it falsely to appear to the said Company and their servants that the said William Williams had been conveyed by the said Company no further or other distance on the said railway than from Willegden aforesaid to the said station called the Camden Station, and that the said William Williams was not indebted to the said Railway Company, or liable to pay them any sum of money for his conveyance upon the said railway, and by the false pretences and appearances in this count aforesaid, to induce and persuade the said Company and their said servants to accept and receive the said ticket in this count mentioned, as a voucher to the effect that all claims, charges, and demands of the said Company on the said William Williams, in respect of such conveyance as a passenger on the said railway, had been fully paid and dis- charged, and for and in full satisfaction of all claims, charges, and demands whatsoever of the said Company upon the said William Williams, for his conveyance as a passenger on the said railway, and thereby unlawfully, wrongfully, un- justly, and fraudulently to enable the said William Williams to avoid, escape, evade, and elude, and with intent then and there that the said William Williams should thereby unlaw- fully, wrongfully, injuriously, and fraudulently avoid, escape, evade, and elude the payment of the said sum of two dollars, so due to the said company as in this count aforesaid, and to hurt, injure, deceive, prejudice, and defraud the said Company in manner in this count mentioned ; to the great injury, etc., and against the peace, etc. 156 CONSPIRACY. [chap. XVI. Third Count. — Tha.i heretofore, and before and at the time of the committing of the offence hereinafter next mentioned, the said William Williams was indebted to the said London and North- Western Railway Company in a certain sum of money, to wit, the sura of two dollars, and that the said Wil- liam Williams and William Brown, being evil-disposed per- sons, afterwards, to wit, on the day and year aforesaid, at the parish of Willesden aforesaid, in the county of Middlesex aforesaid, and within the jurisdiction of the said Central Criminal Court, unlawfully and wickedly did conspire, com- bine, confederate, and agree together, and with divers other evil-disposed persons, whose names to the jurors aforesaid are as yet unknown, by divers false pretences, and by divers crafty, indirect, false, fraudulent, and deceitful acts, ways, means, devices, stratagems, and contrivances, to enable the said William Williams to avoid, escape, evade, elude, and withhold the payment of the said sum of two dollars to the said Company, and to cheat, defraud, and altogether deprive the said Company of the said debt in this count mentioned, and of all profit, benefit, and advantage to the said Company arising and to arise from the same ; to the great injury and deception of the said Company, to the evil and pernicious example, etc., and against the peace, etc. 3. For a conspiracy to induce a person of unsound mind to sign a paper authorizing the defendants to take possession of his goods?- The jurors, etc., upon their oath present, that E. C. late of the parish of Barnes, in the county of Surrey, spinster, and J. C. the elder, late of the parish and county aforesaid, laborer, and S., his wife, late of the same place, J. C. the younger, late of the parish and county aforesaid, laborer, and J. S. late of the parish and county aforesaid, laborer, and W. K. late of the parish and county aforesaid, laborer, and C. C, other- wise called C. F., late of the parish and county aforesaid, ' 1 Cox, C. C. Appendix, p. xxvii. CHAP. XVI.] CONSPIRACY. 157 laborer, on the twentieth day of November in the year of our Lord — '■ — , with force and arms, at the parish of Barnes, in the county of Surrey, and within the jurisdiction of the Cen- tral Criminal Court, unlawfully and wickedly and maliciously did conspire, combine, confederate, and agree together, to de- fraud one J. R. of certain cattle, goods, and chattels, of great value, to wit, of the value of one hundred pounds, and then and there to obtain and acquire the same to themselves. And the jurors aforesaid, upon their oath aforesaid, do further pre- sent, that the said E. C, J. C. the elder, and S. his wife, J. C. the younger, J. S., W. K., and C. C, otherwise called C. F., in pursuance of the said conspiracy, did on the day and year aforesaid, at the parish and county aforesaid, and within the jurisdiction of the said Court, fraudulently induce and procure the said J. R. to sign a paper writing, purporting to authorize them to take possession of and sell the said cattle, goods, and chattels, the said J. R. then and there being of unsound mind, and weak and diseased in body, and whoUy incapable of understanding, and not understanding the meaning and effect of the said paper writing. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said E. C, J. C. the elder, and S. his wife, J. C. the younger, J. S., W. K., and C. C, otherwise called C. F., in further pursuance of the said con- spiracy, did, on the day and year aforesaid, and within the jurisdiction of the said Court, with force and arms, at, etc., and under color and pretence of the said paper writing so signed by the said J. R. as aforesaid, seize and take possession of divers cattle, goods, and chattels, to wit, one horse, one cart, five chairs, five tables, of the said J. R., of great value, to wit, of the value of one hundred pounds, and did then and there carry away, sell, dispose of, and convert the same to their own use ; to the great damage of the said J. R., to the evil example of all others, and against the peace, etc. Second Count. — And the jurors aforesaid, upon their oath aforesaid, do further present, that the said E. C, and J. C. the elder, and S. his wife, J. C. the younger, J. S., W. K., and C. C, otherwise called C. F., contriving to injure the said J. R., and, as much as in them lay, unlawfully to ruin him in his trade 14 158 CONSPIEACT. [chap. XVI, and business of a laundress, which he then and there used, exer- cised, and carried on, and to prevent and hinder him from using, exercising, and carrying on the said trade and business in as full, ample, and beneficial a manner as he was used and accustomed to do, on the twentieth day of November in the year of our Lord , at the parish aforesaid, in the county aforesaid, and within the jurisdiction of the said Central Criminal Court, unlawfully, wickedly, and maliciously did conspire, combine, confederate, and agree together, with divers indirect, subtle, and fraudulent means and devices, to injure, oppress, and impoverish the said J. R., and wholly to prevent and hinder him from using, exercising, and carrying on his said trade and business of a laundress ; to the great damage of the said J. R., to the evil example of all others in the like case offending, and against the peace, etc. Third Count. — And the jurors aforesaid, upon their oath aforesaid, do further present, that the said E. C, J. C. the elder, and S. his wife, J. C. the younger, J. S., W. K., and C. C, otherwise called C. F., on the day and year last afore- said, at the parish and county aforesaid, and within the juris- diction of the Central Criminal Court, with force and arms, at, etc., unlawfully, wickedly, and maliciously did again conspire, combine, confederate, and agree together, by divers indirect, subtle, and fraudulent means and devices, to injure, oppress, impoverish, and wholly ruin E,. R., and wholly to prevent and hinder him from carrying on his trade and business of a laun- dress, which he then and there exercised and carried on ; to the great damage of the said R. R., to the evil and pernicious example of all others in the like case offending, and against the peace, etc. 4. For conspiracy to defeat the course of public justice, by giv- ing false evidence, and suppressing facts, on an inquiry into a charge of felony before a magistrate^ The jurors, etc., upon their oath present, that before the * 5 Cox, C. C. Appendix, p. ix. CHAP. XVI.] CONSPIRACY. 159 commission of the offence by W. C. and R. C, hereinafter mentioned to have been committed by them, one F. S. had been charged before J. T., Esquire, one of the magistrates of the Police Courts of the metropolis, sitting at the Police Court, Greenwich, in the county of Kent, and within the metropolitan police district, on suspicion of having committed a certain felony, to wit, of having feloniously broken and entered the dwelling-house of one J. M., and stolen therein divers goods, chattels, and moneys of the said J. M. And the jurors aforesaid, upon their oath aforesaid, do further present, that at the time of the commission of the offence hereinafter alleged to have been committed by the said W. C. and R. C, to wit, on the thirtieth day of September in the year of our Lord ; at the parish of Greenwich, in th« county of Kent, the said W. C. and R. C. knew and were acquainted with divers matters, facts, circumstances, and things material to be inquired into by the said J. T., as such magistrate as afore- said, and touching and concerning the said charge and the said subject-matter thereof, all and every of which said mat- ters, facts, circumstances, and things it then and there was the duty of the said W. C. and R. C. to make known and reveal to the said J. T., as such magistrate as aforesaid, and which the said "W. C. and R. C. were then and there required on her Majesty's behalf by the said J. T., as such magistrate as aforesaid, to make known, discover, and reveal to the said J. T., as such magistrate as aforesaid. And the jurors afore- said, upon their oath aforesaid, do further present, that the said W. C. late of the parish of Greenwich, in the county of Kent, laborer, and R. C. late of the same place, laborer, being evil-disposed persons, and contriving and intending as much as in them lay to pervert the due course of law and justice, and not regarding their said duty in that behalf, on the said thirtieth day of September in the year aforesaid, at the parish aforesaid, in the county aforesaid, unlawfully did conspire, combine, confederate, and agree together to deceive the said J. T., so being such magistrate as aforesaid, in the premises, and to withhold and conceal from the said J. T. the said mat- ters, facts, circumstances, and things, and falsely to represent 160 CONSPIRACT. . [chap. XVI. to the said J. T., so being such magistrate as aforesaid, that they and each of them the said W. C. and R. C. were igno- rant of all the said several mattfers, facts, circumstances, and things, and falsely to swear before the said J. T., to the effect last aforesaid, and by such false swearing and divers deceit- ful, false, and indirect means, ways, and methods, to perfect and put into effect the said wicked conspiracy, combination, confederacy, and agreement, and to procure the said J. T., as such magistrate as aforesaid, to dismiss the said charge, and mutually to aid and assist one another in perfecting and put- ting in execution the said wicked conspiracy, combination, confederacy, and agreement ; to the evil and pernicious example of all other persons in the like case offending, and against the peace, etc. Second Count. — And the jurors aforesaid, upon their oath aforesaid, do further present, that the said W. C, on the said thirtieth day of September in the year aforesaid, at the parish of Greenwich aforesaid, in the county of Kent aforesaid, unlawfully did conspire, combine, confederate, and agree together, and with divers other persons, whose names to the jurors aforesaid are unknown, wilfully and corruptly to give false evidence, and wilfully and corruptly to swear that which was false, upon the examinations upon oath of the said W. C. and R. C, before the said J. T. Esquire, then being one of the magistrates of the Police Courts of the metropolis, acting at one of the said Courts, to wit, at the Greenwich Police Court, in the county of Kent, touching and concerning a cer- tain charge then depending before the said J. T., to wit, a charge against one F. S., of having feloniously broken and entered a certain dwelling-house of one J. M., and stolen therein divers goods, chattels, and moneys of the said J. M. ; to the great and pernicious example of all others in the like case offending, to the manifest perversion of public justice, and against the peace, etc. CHAP. XVI.] CONSPIEACY. '161 5. For a conspiracy by the maker of two promissory notes, arid two other persons, fraudulently to obtain the said notes from the holder.^ First Count. — The jurors, etc., upon their oath present, that B. C. W. late of the parish of Saint Martin-in-the-Fields, in the county of Middlesex, laborer, L. P. G. late of the same place, laborer, and J. M. late of the same place, laborer, wick- edly devising and intending to cheat, deceive, and defraud one E. L. H., on the twentieth day of March in the year of our Lord , with force and arms, at the parish aforesaid, in the county aforesaid, and withi« the jurisdiction of the said court, did, amongst themselves, unlawfully conspire, combine, confederate, and agree together, by divers false pre- tences and subtle means and devices, to obtain and acquire to themselves of and from the said E, L. H. divers valuable securities of the said E. L. H. ; that is to say, a certain prom- issory note for the payment of six thousand doUars, made by the said J. M. ; and a certain other promissory note for the payment of five thousand dollars, made by the said J. M. And that, in pursuance of the aforesaid conspiracy, com- bination, and confederacy and agreement amongst them as aforesaid, the said B. C. W., afterwards, to wit, on the twenty-sixth day of March in the year aforesaid, at the parish aforesaid, in the county aforesaid, and within the jurisdiction of the said court, did falsely, fraudulently, and deceitfully pre- tend to^the said E. L. H. that the said B. C. W. had a friend who wished to invest twenty thousand dollars in the said J. M.'s paper, meaning thereby that the said B. C. W. had a friend who was willing and desirous to discount bills of ex- change accepted by, or promissory notes made by, the said J. M. to the amount of twenty thousand dollars, and by which friend the said B. C. W. could and would procure the said promissory note of and belonging E. L. H. to be discounted, by means of which said false pretences, in pursuance of the ^ 1 Cox, C. C Appendix, p. xiiL 14* 162 CONSPIRACY. [chap. XVL aforesaid conspiracy, combination, confederacy, and agree- ment, the said B. C. W., L. P. G., and J. M., afterwards, to wit, on the day and year last aforesaid, at the parish aforesaid, in the county aforesaid, and within the jurisdiction of the said court, did unlawfully, falsely, fraudulently, and deceitfully obtain, acquire, and get into their hands and possession the said promissory notes of and belonging to the said E. L. H. ; whereas, in truth and in fact, the said B. C. W. had not any friend or other person who wished to invest twenty thousand dollars, or any other sum of money, in the said J. M.'s paper, or by whom he could procure the said promissory notes of the said E. L. H. to be discounted ; and whereas, in truth and in fact, the said B. C. W. did not procure the said promissory notes to be discounted ; and whereas, in truth and in fact, the said B. C. W. did not intend to procure the said promissory notes to be discounted; but, on the contrary thereof, with- drew himself with the said promissory notes; to the great damage of the said E. L. H., and against the peace, etc. Second Count. — And the jurors aforesaid, upon their oath aforesaid, do further present, that the said B. C. W,, L. P. G., and J. M., wickedly devising and intending to cheat, deceive, and defraud the said E, L. H., afterwards, to wit, on the said twentieth day of March in the year aforesaid, with force and arms, at the parish aforesaid, in the county aforesaid, and within the jurisdiction of the said court, did, amongst them- selves, unlawfully conspire, combine, confederate, and agree together, by divers false pretences and subtle means and devices, to obtain and acquire to themselves of and from the said E. L. H, divers valuable securities of the said E. L. H. ; that is to say, a certain promissory note for the payment of live thousand dollars, made by the said J. M., and a certain other promissory note for the payment of five thousand dol- lars, made by the said J. M. And that, in pursuance of the aforesaid conspiracy, combination, confederacy, and agree- ment amongst them so had as aforesaid, the said B. C. W. afterwards, to wit, on the twenty-sixth day of March in the year aforesaid, at the parish aforesaid, in the county aforesaid, and within the jurisdiction of the said court, did falsely. CHAP. XVI.] CONSPIRACY. 163 fraudulently, and deceitfully pretend to the said E. L. H. that the said B. C. W. had a friend who was willing and desirous to discount any bills of exchange accepted or promissory notes made by the said J. M. to the amount of twenty thou- sand dollars, and that he could and would procure the said promissory notes of the said E. L. H., so made by the said J. M. as aforesaid, to be discounted by the said friend of the said B. C. W. ; by means of which false pretences, in pursuance of the aforesaid conspu-acy, combination, confed- eracy, and agreement, the said B. C. W., L. P. G., and J. M., afterwards, to wit, on the day and year last aforesaid, at the parish aforesaid, in the county aforesaid, and within the juris- diction of the said court, did falsely, fraudulently, and deceit- fully obtain, acquire, and get into their hands and possession the said promissory notes of the said E. L. H. ; whereas, in truth and in fact, the said B. C. W. had not any friend or other person who was willing or desirous to discount bUls of exchange accepted, or promissory notes made by the said J. M. to the amount of twenty thousand dollars, or any amount whatever ; and whereas, in truth and in fact, the said B. C. W. did not procure the said promissory notes to be dis- counted ; and whereas, in truth and in fact, the said B. C. W. did not intend to procure the said promissory notes to be dis- counted, but on the contrary thereof, withdrew himself with the said promissory notes ; to the great damage of the said E. L. H., and against the peace, etc. Third Count. — And the jurors aforesaid, upon their oath aforesaid, do further present, that the said B. C. W., L. P. G., and J. M., wickedly devising and intending to cheat, deceive, and defraud the said E. L. H., afterwards, to wit, on the said twentieth day of March in the year of our Lord , with force and arms, at the parish aforesaid, in the county aforesaid, and within the jurisdiction of the said court, did, amongst themselves, unlawfully conspire, combine, confed- erate, and agree together, by divers false pretences and subtle means and devices, to obtain and acquire to themselves of and from the said E. L. H. divers valuable securities of the said E. L. H., that is to say, a certain promissory note for the 164 CONSPIRACY. [chap. XVI. payment of six thousand dollars, and of the value of six thousand dollars, and a certain other promissory note for the payment of five thousand dollars, and of the value of five thousand dollars ; to the great damage of the said E. L. H., and against the peace, etc. 6. Against two persons for conspiracy to procure the defilement of a young female.^ The jurors, etc., upon their oath present, that W. G. Smith late of the parish of Lambeth, in the county of Surrey, and within the jurisdiction of the said court, laborer, and Frances Foreman, otherwise called Fanny Foreman, late of the same place, single woman, being evil-disposed persons, and contriv- ing and wickedly and unlawfully Intending to debauch, cor- rupt, and procure the defilement of one Mary Ann Luttman, and to injure and to aggrieve the said Mary Ann Luttman, heretofore and after the passing of an Act of Parliament made and passed in the session of Parliament holden in the twelfth and thirteenth years of the reign of her present Majesty Queen Victoria, entitled " An Act to Protect Women from Fraudulent Practices for Procuring their Defilement," to wit, on the first day of February in the year of our Lord , at the parish aforesaid, in the county aforesaid, and within the jurisdiction of the said court, unlawfully and wick- edly did conspire, combine, confederate, and agree together, unlawfully against the statute in that behalf, by divers falSe pretences, false representations, and other fraudulent means to procure a certain person, to wit, one Mary Ann Luttman, then and there being a child under the age of twenty-one years, to wit, of the age of fifteen years, to have illicit carnal connection with a man, to wit, the said W. G. Smith, and that afterwards, to wit, on the day and year aforesaid, at the parish aforesaid, in the county aforesaid, and within the juris- diction of the said court, the said Frances Foreman, other- wise called Fanny Foreman, in pursuance of the said conspir* ' 5 Coi, C. C. Appendix, p. viiL CHAP. XVI.] CONSPIRACY. 165 acy and agreement, unlawfully and by certain false pretences, false representations, and other fraudulent means, to wit, by then and there falsely and fraudulently pretending and repre- senting to the said Mary Ann Luttman, that the said Frances Foreman, otherwise called Fanny Foreman, was desirous of employing and would employ the said Mary Ann Luttman to do certain work for the said W. G. Smith for hire and reward to the said Mary Ann Luttman, and by persuading and inducing the said Mary Ann Luttman, by means of such false pretences and representations, to accompany the said Frances Foreman, otherwise called Fanny Foreman, to the house of the said W. G. Smith, did procure the said Mary Ann Luttman then and there to have illicit carnal connection with the said W. G. Smith ; to the great damage, etc., of the said Mary Ann Luttman, to the evil example of all others in said like case offending, and against the peace, etc. 7. For a conspiracy to procure the defilement of a female?- The jurors, etc., upon their oath present, that Mary Ann Mears, late of B. in the county of S., single woman, and Amelia Chalk, late of the same place, laborer, on the first day of June in the year of our Lord , with force and arms, at B. aforesaid, in the county aforesaid, did between themselves conspire, combine, confederate, and agree together wickedly, knowingly, and designedly to procure, by false pre- tences, false representations, and other fraudulent means, one Johanna Carroll, then being a poor child under the age of twenty-one years, to wit, of the age of fifteen years, to have illicit carnal connection with a man, to wit, a certain man whose name is to the jurors aforesaid unknown ; against the peace, etc. ' This count was held to sufficiently charge an indictable offence at com- mon law, in Kegina v. Mears, 1 Temple & Mew, C. C. 414 ; 2 Denison, C. C. 79 ; 4 Cox, C. C. 423 ; 1 Eng. Law and Eq. Rep. 581. 166 CONSPIRACY. [chap. XVI. 8. For conspiring wrongfully to charge the inhabitants of a parish with the maintenance of a child?- The jurors, etc., upon their oath present, that J. P. late of the parish of Saint Luke, in the county of Middlesex, baker, and Caroline, his wife, and divers other persons whose names are to the jurors aforesaid unknown, wrongfully, fraudulently, and unjustly devising and intending to charge the inhabitants of the parish of Saint Andrew, Holborn, in the city of London, with the maintenance of a certain male child, of very tender years, to wit, of the age of one day, whose name is to the jurors aforesaid unknown ; and also wrongfully, fraudulently, and unjustly devising and intending to obstruct and hinder the church-wardens and overseers of the poor of the said parish of Saint Andrew, Holborn, from discovering the person legally liable to maintain the said child ; and also wrongfully, fraud- ulently, and unjustly devising and intending to obstruct and hinder any legal proceedings which the church-wardens and overseers of the poor of the said parish might desire to adopt against the person legally liable as aforesaid, for the purpose of compelling such person to maintain the said chUd when the same should become chargeable to the said parish, on the eleventh day of February, in the year of our Lord , with force and amas, in the parish of Saint Andrew, Holborn, in the city of London, within the jurisdiction of this court, did among themselves conspire, combine, confederate, and agree together, to cause the said chUd to be left at and in the work- house of the said last-named parish, situate in the parish of Saint Sepulchre, in the city of London, and within the juris- diction of this court, to be there maintained at the expense of the inhabitants of the said parish of Saint Andrew, Holborn, and so and in such manner that the church-wardens and over- seers of the said parish might not be able to ascertain or dis- cover the person legally liable to maintain the said child, nor to adopt any legal proceedings against such person so liable ' 1 Cox, C. C. Appendix, p. xi. CHAP. XVI.] CONSBIRACY, 167 as aforesaid, for the purpose of compelling such person to maintain the said child. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said J. P. and Car- oline, his wife, afterwards, to wit, on the day and year afore- said, in the parish of Saint Andrew, Holborn, in the city of London aforesaid, and within the jurisdiction of this court, in pursuance of and according to the said conspiracy, combina- tion, confederacy, and agreement had as aforesaid among themselves and the said other persons whose names are to the jurors aforesaid unknown, and with the view and object of carrying the same into effect, did hire and employ one M. J., wife of W. J., of the parish of Saint Andrew, Holborn afore- said, laborer, for a certain reward to her in that behalf, to wit, for the sum of five pounds of lawful money of Great Britain, to take the said child into the care and custody of the said M. J., and. to keep the same, to wit, in the said parish of Saint Andrew, Holborn, for a few days, to wit, three days, and at the expiration thereof, to deliver and leave the said child at and in the workhouse of the said last-named parish, situate as aforesaid, in order that the said child might then and there be maintained in the said workhouse at the expense of the inhabitants of the parish of Saint Andrew, Holborn afore- said. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said J. P, and Caroline his wife, afterwards, to wit, on the day and year aforesaid, in. the par- ish of Saint Andrew, Holborn, in the county of Middlesex, and within the jurisdiction of this court, in pursuance of and according to the said conspiracy, combination, confederacy, and agreement had as aforesaid among themselves and the said other persons whose names are to the jurors aforesaid unknown, and with the view and object of carrying the same into effect, did deliver the said child to the said M. J. for the purpose aforesaid, the said M. J. being then and there wholly ignorant of the respective names and addresses of the said J. P. and Caroline, his wife, and of the said other persons so conspiring and intending as aforesaid, whose names are to the jurors aforesaid unknown, as the said J. P. and Caroline, his wife, then and there well knew, and the said M. J. then and 168 CONSPIRACY. [chap. XVI. there being wholly ignorant of the name and address of the said person legally liable to maintain the said child, and not herself being such person as the said J. P. and Caroline, his wife, then and there well knew ; to the evil example of all others in the like case offending, and against the peace, etc. 9. For conspiracy to defraud intending emigrants of their pas- sage-money by pretending to have an interest in certain ships?- The jurors, etc., upon their oath present, that C. J. T. late of the city of London, laborer, and H. G. M., late of the same place, laborer, on the first day of June in the year of our Lord , with force and arms, at the parish of , in the city of London, and within the jurisdiction of the Central Criminal Court, together with divers other evil-disposed per- sons, to the jurors aforesaid unknown, unlawfully, fraudu- lently, and deceitfully did combine, conspire, confederate, and agree together to open a certain ofl&ce, as and for the office of a pretended company, called the " Australian Gold and Gen- eral Mining Company," and by falsely and fraudulently rep- resenting to J. J., J. G., and T. B., that the said company had chartered divers vessels, for the purpose of conveying passen- gers to Port Philip, in Australia, and that the said C. J. T. and the said H. G. M. were authorized by the said company to sell and dispose of berths to persoris contracting to become passengers on board the said vessels, to obtain of and from the said J. J., J. G., and T. B., divers large sums of money of the moneys of the said J. J., J. G., and T. B. respectively, and to cheat and defraud them thereof. And the jurors afore- said, upon their oath aforesaid, do further present, that after- wards, to wit, on the day and year aforesaid, at London aforesaid, and within the jurisdiction of the said court, the said C. J. T. and the said H. G. M., together with the other evil-disposed persons to the jurors aforefeaid unknown, in pur- suance of the said conspiracy, combination, and agreement ^ 6 Cox, C. C. Appendix, p. Ixxxi. CHAP. XVI.] CONSPIRACT. 169 I SO had by and amongst them as aforesaid, did then and there open a certain office in the said city of London, and did then and there falsely and fraudulently pretend and advertise • that the said office was the office of a certain company then and there established for the purpose of promoting the emi- gration of her Majesty's liege subjects to parts beyond the seas, called the " Australian Gold and General Mining Com- pany," to wit, at London aforesaid, and within the jurisdiction of the said court. And the jurors aforesaid, upon their oath - aforesaid, do further present, that afterwards, to wit, on the same day and year aforesaid, at London aforesaid, and within the jurisdiction of the said court, the said C. J. T. and the said H. G. M., in pursuance of the said conspiracy, combina- tion, and agreement so had and made between themselves and the other evil-disposed persons aforesaid, did falsely pre- tend to the said J. J., J. G., and T. B., that divers vessels, and, amongst others, certain vessels called respectively, the "Camilla," the " Medicis," and the "Janet Mitchell," had been chartered by the said company to convey passengers from the port of London to Port Philip in Australia, and that the said C. J. T. and H. G. M. had full and legal power and authority to secure and provide for the conveyance of the said J. J.,' J. G., and T. B. as passengers on board the said vessels, or some or one of them ; by means of which said false pretences and of the premises in this count mentioned, and in pursuance of the conspiracy, combination, and agree- ment aforesaid, the said C. J. T. and H. G. M. did then and there unlawfully and fraudulently obtain of and from the said J. J. the sum of eleven pounds in money of the moneys of the said J. J., of the said J. G. the sum of nine pounds in money of the moneys of the said J. G., and of the said T. B. the sum of thirty pounds in money of the moneys of the said T. B., with intent then and there to cheat and defraud the said J. J., the said J. G., and the said T. B., of the said sums of money of the moneys of the said J. J., the said J. G., and the said T. B. respectively ; to the great damage, injury, and de- ception of the said J. J., the said J. G., and the said T. B., and against the peace, etc. 15 170 CONSPIRACY. [CHAP. XVI. Second Coimt. — And the jurors aforesaid, upon their oath aforesaid, do further present, that the said C. J. T. and H. G. M. afterwards, to wit, on the day and year aforesaid, in the city aforesaid, and within the jurisdiction of the said court, together with divers other evil-disposed persons to the jurors aforesaid unknown, unlawfully, fraudulently, and deceitfully did combine, conspire, confederate, and agree together by divers false pretences and subtle means and devices to cause it to be believed, that a certain company was estab- lished at a certain office in the said city, to wit, for the pur- pose of promoting the emigration of her Majesty's liege sub- jects to parts beyond the seas, and that the said C. J. T. and H. G. M. were the agents of and for the said company, and that the said company had then chartered certain ships to sail from London to a place beyond the seas, to wit, Australia, and that the said C. J. T. and H. G. M. then could, as such agents of and for the said company, contract for the carrying of passengers, and provide that passengers should be carried by the said ships, chartered by the said company, from Lon- don to Australia as aforesaid, and by means of the said belief to obtain from divers liege subjects of our Lady the Queen, to wit, J. J., J. G., and T. B., divers large sums of money of the moneys of the said J. J., of the moneys of the said J. G., and of the moneys of the said T. B., and to cheat and defraud the said J. J., J. G., and T. B., of their said moneys respec- tively; and in pursuance of the said last-mentioned conspir- acy, the said C. J. T. and H. G. M. did then and there open an office in the said city of London, and falsely pretend that it was the office of the said company, and the said C. J. T. and H. G, M., at the said office, in pursuance of the said last-mentioned conspiracy, then and there falsely and deceit- fully pretended that they were the agents of and for the said company, that the said company had then chartered certain ships to sail from London to a place beyond the seas, to wit, Australia, and that the said C. J. T. and H. G. M. then could, as such agents of and for the said company, lawfully contract for the carrying of passengers, and provide that passengers should be carried by the said ships chartered by the said CHAP. XVI.] CONSPIRACY. 171 company from London to Australia as aforesaid ; and the said C. J. T. and H. G. M., by means of the said false pre- tences and in further pursuance of the said last-mentioned conspiracy, did then and there unlawfully obtain from the said J. J. eleven pounds in money of the moneys of the said J. J., and from the said J. G. nine pounds in money of the moneys of the said J. G., and from the said T. B. thirty pounds in money of the moneys of the said T. B., with intent then and there to cheat and defraud the said J. J., J. G., and T. B. of their said moneys respectively; to the great dam- age of the said J. J., J. G., and T. B. respectively, to the evil example of all others in the lilce case offending, and against the peace, etc. Third Count. — And the jurors aforesaid, upon their oath aforesaid, do further present, that the said C. J. T. and H. G. M., on the day and year aforesaid, in the city aforesaid, and within the jurisdiction of the said court, together with divers other evil-disposed persons to the jurors aforesaid unknown, unlawfully, fraudulently, and deceitfully did combine, conspire, confederate, and agree together, by divers false pretences and subtle means and devices, to cause it to be believed that a certain company, called the " Australian Gold Mining and Emigration Company," had an office in the said city of Lon- don for the transaction of its business, and that the said C. J. T. was the agent of and for the said company ; and that the said company had then chartered a certain ship, called the " Medicis," to sail from London to a place beyond the seas, to wit, Australia, and that the said C. J. T. then could, as such agent of and for the said company, contract for the carry- ing of passengers and provide that passengers should be car- ried by the said ship, called the " Medicis," from London to Australia aforesaid, and by means of the said belief to obtain from one J. G. a large sum of money, to wit, nine pounds in money, of the moneys of 'the said J. G., and to cheat and de- fraud him thereof ; and in pursuance of the said last-mentioned conspiracy, the said C. J. T. and H. G. M., on the day and year aforesaid, at the city aforesaid, and within the jurisdic- tion of the said court, did open an office in the said city of 172 CONSPIRACY. [chap. XVI. London, and did falsely pretend that it was the office of the said " Australian Gold Mining' and Emigration Company," and that the said company had then chartered the said ship, called the " Medicis," to sail from London to a place beyond the seas, to wit, Australia, and that the said C. J. T. then could contract for the carrying of passengers, and provide that passengers should be carried by the said ship, called the " Med- icis," from London to Australia aforesaid ; by means of which said false pretences and in further pursuance of the said last- mentioned conspiracy, the said C. J. T. and the said H. G. M., did then and there unlawfully obtain from the said J. G. nine pounds in money of the moneys of the said J. G., with intent then and there to cheat and defraud him thereof; to the great damage of the said J. G., to the evil example of all others in the like case offending, and against the peace, etc. Fowth Count, — And the jurors aforesaid, upon their oath aforesaid, do further present, that the said C. J. T. and the said H/ G. M. afterwards, to wit, on the day and year afore- said, in the city aforesaid, and within the jurisdiction of the said court, together with divers other evil-disposed persons to the jurors aforesaid unknown, unlawfully, fraudulently, and deceitfully did combine, conspire, confederate, and agree to- gether, by divers false pretences and subtle means and devices, to cheat and defraud one J. G. of a large sum of money of the moneys of the said J. G., and that, in pursuance of the said last-mentioned ^conspiracy, the said C. J. T. and H. G. M., afterwards, to wit, on the day and year aforesaid, in the city aforesaid, and within the jurisdiction of the said court, did falsely pretend that a certain company, called the " Australian Gold Mining and Emigration Company," had then chartered a certain ship, called the " Medicis," to sail from London to a certain place beyond the seas, to wit, Port Philip in Australia, and that the said C. J. T. and H. G. M. then could, on behalf of the said company, provide that one H. H. should be carried as a passenger on board the said ship from London to Port Philip aforesaid ; by means of which said falSe pretences and in pursuance of the said last-mentioned conspir- acy, the said C. J. T. and H. G. M., did then and there unlaw- CHAP. XVI.] CONSPIRACY. 173 fully obtain from the said J. G. nine pounds in money of the moneys of the said J. G., with intent then and there to cheat and defraud him thereof. Whereas in truth and in fact the said company had not then chartered the said ship, called the " Medicis," to sail from London to Port Philip aforesaid, nor could the said C. J. T. and H. G. M., or either of them, then on behalf of the said company or in any other right, provide that the said H. H. should be carried as a passenger on board the said ship from London to Port Philip as afore- said ; to the great damage of the said J. G., to the evil example of all others in like case offending, and, against the peace, etc. Fifth Count. — And the jurors aforesaid, upon their oath aforesaid, do further present that the said C. J. T. and H. G. M., Eifterwards, to wit, on the day and year aforesaid, in the city aforesaid, and within the jurisdiction of the said court, together with divers other evil-disposed persons, to the jurors aforesaid unknown, unlawfully, fraudulently, and deceitfully did combine, conspire, confederate, and agree together, by divers false pretences and subtle means and devices, to cheat and defraud one J. G. of a large sum of money, of the moneys of the said J. G., and that, in pursuance of the said last-men- tioned conspiracy, the said C. J. T. afterwards, to wit, on the day and year aforesaid, in the city aforesaid, and within the jurisdiction of the said court, did falsely pretend to the said J. G. that a certain company, called the " Australian Gold Mining and Emigration Company," had then chartered a certain ship, called the " Medicis," to sail from London to a certain place beyond the seas, to wit. Port Philip, in Australia, and that the said C. J. T. then could,- on behalf of the said company, lawfully contract and agree that one H. H. should be carried as a passenger on board the said ship from London to Port Philip aforesaid ; by means of which said false pretences, and in pursuance of the said last-mentioned con- spiracy, the said C. J. T. 'and H. G. M. did then and there unlawfully obtain from the said J. G. nine pounds in money, of the moneys of the said J. G., with intent then and there to cheat and defraud him thereof. Whereas in truth and in fact no company called the " Australian Gold and General 15* 174 CONSPIKACT. [chap. XVI. Mining Company " had then chartered the said ship, called the " Medicis," to sail from London to Port Philip aforesaid, nor could the said C. J. T. then, on behalf of the said company, or in any other right, contract or agree that the said H. H. should be carried as a passenger on board the said ship, from London to Port Philip aforesaid ; to the great damage of the said J. G., to the evil example of all others in the like case offending, and against the peace, etc. Sixth Count. — And the jurors aforesaid, upon their oath aforesaid, do further present that the said C. J. T. and H. G. M., afterwards, to wit, on the same day and year aforesaid, in the city aforesaid, and within the jurisdiction of the said court, together with the said divers other evil-disposed persons, to the jurors aforesaid unknown, unlawfully, fraudulently, and deceitfully did conspire, combine, confederate, and agree to- gether, by divers false pretences and subtle means and devices, to obtain of and from one J. J. divers large sums of money, of the moneys of the said J. J., and then and there to cheat and defraud him thereof ; to the great damage of the said J. J., to the evU example of all others in like case offending, and against the peace, etc. 10. For a conspiracy, by false representation, to induce a party to forego a claim} The jurors, etc., upon their oath present, that before the time of the committing of the offence hereinafter mentioned, to wit, on the first day of June in the year of our Lord , at B. aforesaid, in the county aforesaid, one T. S. sold to W. B. a certain mare, at and for the price, to wit, of one hundred dollars, to be paid for the said mare by the said W. B. to the said T. S., which said price at the time of the committing the offence hereinafter mentioned was still due and unpaid. And the jurors aforesaid, upon their oath afore- said, do further present, that the said W. C. late of, etc., ' This count was held good in Kegina v. Carlisle, 25 Eng. Law and Eq. Rep. 57r; 6 Cox, C. C. 366. CHAP. XVI.] CONSPIRACY. 175 and the said W. B., late of, etc., then and there well knowing all and several the premises, but contriving and intending to cheat and defraud the said T. S., did, on the day and year aforesaid, at B. aforesaid, in the county aforesaid, unlawfully conspire, contrive, confederate, and agree together by false and fraudulent representations to the said T. S. that the said mare was unsound of her wind, and that she had been exam- ined by a veterinary surgeon, who had pronounced her a roarer; and that the said "W. B. had sold her for seventy-five dollars, to induce and persuade the said T. S. to accept and receive from the said W. B. a much less sum of money in payment for the said mare than the said W. B. had agreed to pay the said T. S. for the same, and thereby then and there to cheat and defiraud the said T. S. of a large sum, to wit, twenty-five dollars, of the price so agreed by the said W. B. to be paid to the said T. S. for the said mare ; against the peace, etc. CHAPTER XVII DISTURBANCES OE PUBLIC MEETINGS, ETC. 1. For disturbing a school — Mass. St. 1849, ch. 59 ; St. 1852, ch. 222.1 The jurors, etc., upon their oath present, that on the first day of June in the year of our Lord , a certain school was met and assembled for the purpose of public instruction, in a school-house, known as the school-house in ward number seven, at B. in the county of S. And the jurors aforesaid, upon their oath aforesaid, do further present, that C. D. late of B. aforesaid, in the county aforesaid, laborer, on the day and year aforesaid, with force and arms, at B. aforesaid, in the county aforesaid, whilst the said school was so assembled as 1 In the cage of Commouwealth v. Porter, not yet reported, but an abstract of which is given in the Monthly Law Reporter, vol. 7, n. s. p. 476, the de- fendant was convicted under this statute for disturbing a temperance meet- ing. There was a motion to quash the indictment, and also a motion in arrest of judgment, on the ground that the indictment charged no offence. It was contended by the defendants, that the language of the statute is appU- cable only to meetings which are recognized by our laws, as schools are, that is, meetings which are made necessary by the law for the exercise of the legal rights and duties of citizens. But Shaw, C. J., in delivering the opin- ion of the Court, held, that in this Commonwealth the right of the people to assemble and consult upon the common good is guaranteed by the Constitu- tion ; that a lawful purpose is a purpose warranted by the Constitution and laws ; and the people have a right to meet and discuss the temperance laws ; and are protected in so doing. And it is no objection that this statute may extend to political meetings, and even to amusements. Even theatres are lawful assemblies. And if it were held otherwise, clubs might be formed to put an entire end to all such meetings. CHAP. XVII.] DISTURBANCES OP PUBLIC MEETINGS. 177 aforesaid, within the said school-house, and during the per- formance of the exercises of said school, did come into the said school-house, and did then and there wilfully interrupt and disturb the said school by then and there, here set forth the facts according to the evidence; against the peace, etc., and contrary to the form of the statute in such case made and provided. 2. For distwhing a funeral procession by fast driving. — Mass. St. 1845, ch. 193. The jurors, etc., upon their oath present, that heretofore, to wit, on the first day of June in the year of our Lord , at B. in the county of S., a certain funeral procession was assembled to solemnize the burial of one J. N. then lately deceased, and was then and there being and passing along and through a certain street called Main Street. And the jurors aforesaid, upon their oath aforesaid, do further present, that C. D. late of B. aforesaid, in the county aforesaid, laborer, afterwards, to wit, on the day and year aforesaid, with force and arms, at B. aforesaid, in the county aforesaid, then and there having charge of a certain horse and carriage, did then and there fast and furiously drive the same along and through said Main Street, and by reason of such fast and furious driving of the same, did then and there unlawfully and wil- fully interrupt and disturb the said funeral procession then and there being and .passing along and through said Main Street; against the peace of said Commonwealth, and con- trary to the form of the statute in such case made and pro- vided. 3. For disturbing religious worship. — Rev. Sts. of Mass. ch. 130, § 171.1 The jurors, etc., upon their oath present, that C. D. late of 1 A charge for behaving rudely in a meeting-house, and for interrupting public worship, cannot be joined in one count. Commonwealth v. Symonds, 2 Mass. (Rand's ed.), 162. 178 DISTTIRBANCES OF PUBLIC MEETINGS. [CHAP. XVII. B. in the county of S., laborer, on the first day of June in the year of our Lord , with force and arms, at B. aforesaid, in the county aforesaid, did wilfully interrupt and disturb a cer- tain assembly of people there met for the worship of God, "within the place of such meeting, to wit, within the meeting- house of the First Parish in B. aforesaid, in the county afore- said, and during the performance of divine service in said meeting-house, by then and there, here set out the facts according to the evidence ; against the peace, etc., and con- trary to the form of the statute in such case made and provided. 4. For disorderly conduct at an election.^ The jurors, etc., upon their oath present, that heretofore, to wit, on the first day of June in the year of our Lord , at B. in the county of S., a town meeting of the inhabitants of said B., for the election of governor and lieu- tenant-governor of said Commonwealth, and for senators for the district of S., was then and there duly holden. And the jurors aforesaid, upon their oath aforesaid, do further present, that C. D. late of B. in the county of S., laborer, afterwards, on the day and year aforesaid, with force and arms, at B. afore- said, in the county aforesaid, in the town meeting aforesaid, did behave himself disorderly, by then and there, here set out the facts according to the evidence ; against the peace, etc., and contrary to the forth of the statute in such case made and provided. ' This is an oflfence at common law. Commonwealth v. Hoxey, 16 Mass. (Band's ed.), 384. See Mass. Rev. Sts. ch. 4, § 10. CHAPTER XVIII. DUELLING AND CHALLENGING TO FIGHT. As deliberate duelling is, if death ensue, murder, and is also an offence, though the deed should not prove fatal to either party, so the sending a challenge to fight is a misde- meanor, by reason of its direct and immediate tendency to a breach of the peace, and as leading to the crime of murder. And it is not only an offence to challenge another, either by word or letter, to fight a duel, but also to be the messenger of such a challenge. And to provoke another to send a chal- lenge has been Ukewise held to be a misdemeanor.^ 1. For mv/rder in a duel fought without the State. — Rev. Sts. of Mass. ch. 125, .§ 3. The jurors, etc., upon their oath present, that A. B. being an inhabitant of this State, to wit, of B. in the county of S. and Commonwealth aforesaid, gentleman, by a previous appoint- ment and engagement made within this State, to wit, at B. in the county of S. and Commonwealth aforesaid, on the first day of May in the year aforesaid, with one C. D. to fight a ' 1 Gabbett, Crim. Law, 66 ; 1 Hawkins, P. C. § 18, 19; 1 Deacon, Crim. Law, 219; Boothby, Crim. Law, (ed. 1854,) 60. See Rex v. Bice, 3 East, 581; Rex «. Phillips, *6 East, 4^4; The State v. Taylor, 1 Constitu- tional Reps. 107; Regina v. Cuddy, 1 Carrington & Kirwan, 210; Regina V. Young, 8 Carrington & Payne, 644 ; Rex v. Murphy, 6 Carrington & Payne, 103. See also Hon. Lorenzo Sabine's work, entitled Notes on Duels and Duelling, p. 42, 43, and Appendix, p. 337. 180 DUBLLINa AND CHALLENGING. [CHAP. XVIH. duel without the jurisdiction of this State, to wit, at T. in the county of S. and State of M., did, afterwards, to wit, on the first day of June in the year aforesaid, at T. in the county of S. and State of M., fight a duel with the said C. D., and on the first day of June in the year aforesaid, with force and arms, at T. aforesaid, in the county aforesaid, in the State of M., in and upon the said C. D., feloniously, wilfuUy, and of his malice aforethought, make an assault ; and that the said A. B. a certain pistol, then and there charged with gunpow- der and one leaden buUet, then and there feloniously, wilfully, and of his malice aforethought, did discharge and shoot off", to, against, and upon the said C. D. ; and that the said A. B., with the leaden bullet aforesaid, out of the pistol aforesaid, then and there, by force of the gunpowder aforesaid, by the said A. -B. discharged and shot out of the said^pistol as afore- said, then and there feloniously, wilfully, and of his malice aforethought, did strike, penetrate, and wound the said C. D., then and there giving to the said C. D,, with, the leaden buUet aforesaid, so as aforesaid discharged and shot out of the pistol aforesaid, by the said A. B., in and upon the right side of the belly of the said C. D., one mortal wound, of the depth of four inches, and of the breadth of one inch ; of which mor- tal wound, the said C. D. on and from the said first day of June in the year afoi'esaid, until the first day of July in the year aforesaid, within this State, to wit, at B. in the county of S. and Commonwealth aforesaid, did suffer and languish, and languishing did live ; and afterwards, to wit, on the first day of July in the year aforesaid, at B. in the county of S. and Commonwealth aforesaid, of the mortal wound aforesaid, died. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said A. B., him the said C. D. then and there, by the manner and means aforesaid, feloniously, wilfully, and of his malice aforethought, did kill and murder ; against the peace, etc., and contrary to the form of the statute in such case made and provided. CHAP. XVin.] DTTELLINa AND CHALLENGING. 181 2. For sending a written message to a person, to fight a duel. Rev. Sts. of Mass. ch. 125, § 6.^ The jurjrs, etc., upon their oath present, that C. D. late of B. in the county of S., laborer, on the first day of June in the year of our Lord , with force and arms, at B. aforesaid, in the county aforesaid, wilfuUy and maliciously did send a cer- tain written message to one B. F., purporting and intended to be a challenge to the said E. F., to fight a duel with the said C. D., with a deadly weapon, to wit, a pistol, which writ- ten message is of the tenor following,^ that is to say ; here set out a copy of the message; against the peace of said Com- monwealth, and contrary to the form of the statute in such case made and provided. 3. For posting another for not fighting a duel. — Rev. Sts. of Mass. ch. 125, § 8. The jurors, etc., upon their oath present, that A. B. late of, etc., on the first day of June in the year of oiu: Lord , with force and arms, at "W., in the county of W., wickedly, wilfully, and maliciously did challenge one C. D. to fight a duel with the said A. B., with deadly weapons, to wit, with pistols ; and that the said C. D. having then and there refused to fight the duel aforesaid with the said A. B., in pursuance of the challenge aforesaid, the said A. B. after- wards, to wit, on the same day and year aforesaid, at W. in the county aforesaid, did wickedly and maliciously post and expose the said C. D. to public reproach, by then and ' In an indictment upon a statute which enacts that " Every person who shall give, accept, or knowingly cjury a challege, in writing, or otherwise, to fight in single combat, with any deadly weapon," etc., it is not necessary to aver the place where the contemplated duel is to be fought. Ivey «. The State, 12 Alabama, 276. ' ' See Brown v. The Commonwealth, 2 Virginia Cases, 516 ; Common- wealth V. Pope, 3 Dana, 418. 16 182 DUELLING AND CHALLENGING. [CHAP. XVHI. there placing and exposing to public view, to wit, on the City Hall in W. aforesaid, in the county aforesaid, a certain writing, with the name of the said A. B. thereunto subscribed, containing reproachful and contemptuous language to and concerning the said C. D., which writing is of the te^or follow- ing, that is to say ; here insert a copy ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. CHAPTER XIX. ELECTIONS. X. Against a person for voting, knowing himself not to be a qualified voter. — Rev. Sts. of Mass. ch. 4, § 6. The jurors, etc., upon their oath present, that on the first day of June in the year^jf our Lord , at B. in the county of S., a town meeting of the inhabitants of said B. in the county aforesaid, for the election of governor and lieutenant- governor of the Commonwealth aforesaid, and senators for the district of 8.,^ was then and there duly holden.* And the jurors aforesaid, upon their oath aforesaid, do further pre- sent, that C. D. late of B. in the county of S., laborer, then and there weU knowing himself not to be a qualified voter in said B., did then and there, at the said election, know- ingly and wilfully give in a vote for the officers aforesaid, being the officers then and there, to be chosen at the elec- tion aforesaid; against the peace, etc., and contrary to the form of the statute in such case made and provided. 2. Against a person for giving in more than one ballot at one time of balloting. — Rev. Sts. of Mass. ch. 4, § 7.^ Proceed as in the preceding precedent, to the asterisk, and then as follows. And the jurors aforesaid, upon their oath aforesaid, do further present, that C. D. late of B. in the ' It is not necessary to allege that the district of S. is> in the Common- wealth. Commonwealth v. Shaw, 7 Metcalf, 52. ^ This is a misdemeanor at common law. Commonwealth v. Silsbee, 9 Mass. (Rand's ed.), 416. See also The State v. Bailey, 21 Mane, 62. 184 ELECTIONS. [chap. XIX. county of S., laborer, did then and there, at the election afore- said, wilfully, fraudulently, knowingly, and designedly, give in more than one ballot and list of persons then and there to be elected and chosen into the said offices, at one time of bal- loting at the choice and election aforesaid ; against the peace, etc., and contrary to the form of the statute in such case made and provided. 3. Against a person for giving false answers to the Selectmen presiding at an election, in order to procure his name to be inserted on the list of voters, and to obtain permission to vote. — Rev. Sts. of Mass. ch. 4, § 8. Proceed as in precedent numbir one, to the asterisk, and then as follows. And the jurors aforesaid, upon their oath afore- said, do further present, that C. D. late of B. in the county of S., laborer, was then and there at the election aforesaid, in- quired of by the selectmen of said B., presiding at said meet- ing and election, whether said C. D. had paid any tax assessed upon him within two years next preceding said election, within any town or district in this State, to wit, the Com- monwealth aforesaid, and that the said C. D. did then and there wilfully give a false answer to said selectmen, namely, that the said C. D. had paid a tax assessed upon him in the city of L. in said county, within two years next preced- ing said election, to wit, a tax assessed to him in said L. in the year of our Lord ; whereas, in truth and in fact, said C. D. had not paid any such tax so assessed upon him in said L. in the year of our Lord ; and that the said inquiry was then and there made of C. D. for the purpose of ascer- taining his right to vote at said election, and said false answers were then and there returned by said C. D., the said C. D. then and there fraudulently intending to procure his name to be inserted on the voters' list of said town of B.^ in ' Where the feyidence was that the defendant's name was on the list of voters, when he gave false answers, it was held, that this allegation could not be rejected as surplusage, and that there was a material variance between the allegation and the proof. Commonwealth v. Shaw, 7 Metcalf, 52. CHAP. XIX.] ELECTIONS. 185 the county aforesaid, and to obtain permission then and there to vote at said election ; against the peace, etc., and contrary, etc. 4. For attempting to influence a voter by threatening to dis- charge him from employment. — Mass. St. 1852, ch. 321. Proceed as in precedent number one, to the asterisk, and then as follows. And the jurors aforesaid, upon their oath aforesaid, do further present, that one J. N., the said J. N. being then and there a qualified voter in this Commonwealth, to wit, at B. aforesaid, in the county aforesaid, was then and there in the employment of one C. D. late of B. aforesaid, in the county aforesaid, gentleman. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said C. D. did then and there, at the said election, unlawfully attempt to influence the said J. N., so being a qualified voter in this Commonwealth as aforesaid, to give his the said J. N.'s bal- lot in said election, then and there duly holden, by then and there threatening to discharge the said J. N. firom the said C. D's employment ; against the peace, etc., and contrary to the form of the statute, etc. 16* CHAPTER XX. EMBEZZLEMENT. An indictment for embezzlement must contain, in addition to all the requisites of an indictment for larceny at common law, allegations setting forth the fiduciary relation, or the capacity in which the defendant acted, and by means of which the property came into his possession, and also charg- ing the fraudulent conversion. But the two offences of lar- ceny and embezzlement are so far distinct in their character, that under an indictment charging merely a larceny, evidence of embezzlement will not authorize a conviction.^ ' Commonwealth v. Simpson, 9 Metcalf, 138. In this case, Dewey, J., said, " We have considered the general question, whether an indictment for simple larceny is an appropriate and legal form for charging a case of em- bezzlement under the Rev. Sts. ch. 126, § 30. The statute in terms says, that the person doing certain acts ' shall be deemed, by so doing, to have committed the crime of simple larceny.' Treating this statute as one defining the offence of larceny, and, under the legislative authority, embracing within it a larger range of offences, to be hereafter known and recognized as larcenies, it would well authorize all offences described in it to be charged as larcenies, relying upon the statute as an authority for the positian, that the cases may be punished as larcenies. But we do not feel authorized to give so broad a construction to this statute, and one which would entirely merge the crime of embezzlement in that of larceny. The geaeral object of the various stat- utes in relation to embezzlement, in England and in this Commonwealth, doubtless was, to embrace, as criminal offences punishable by law, certain cases where, although the moral guilt was quite as great as in larceny, yet the technical objection, arising from the fact of a possession lawfully acquired by the party, screened him from punishment They were therefore declared crimes punishable by law. " The purposes of this statute may be sufficiently attained, without any CHAP. XX.J EMBEZZLEMENT. 187 1. Against the president and cashier of a bank for an embezzle- ment. Rev. Sts. of Mass. ch. 126, § 27.^ The jurors, etc., upon their oath present, that "William Wyman, late of Charlestown, in the county of Middlesex, gentleman, and Thomas Brown the younger of that name, of infringement of those rules of criminal pleading which require the charge to be particularly and certainly set forth. The defendant should, as far as is reasonably practicable, be apprised, by the indictment, of the precise nature of the charge made against him. This, in embezzlement, so far as respects the nature of the offence or character of the crime charged, may be easily indicated by setting forth the fiduciary relation, or the capacity in which the defendant acted, and by means of iVhich the property came into his posses- sion, and by charging, the fraudulent conversion. Such seems to have been the practice under the English Sts., 21 Hen. 8, ch..7, 39 Geo. 3, ch. 85, and 52 Geo. 3, ch. 63. See the forms of indictment, in 3 Chitty, Grim. Law, (4th Am. ed.), 961, et seq. Archbold Crim. PI. (Isted.), 156. " The court are of opinion that the two offences of larceny and embezzle- ment are so far distinct in their character, that under an indictment charging merely a larceny, evidence of embezzlement is not sufficient to authorize a conviction ; and that, in cases of embezzlement, the proper mode is, notwith- standing the statute to which we have referred, to allege sufficient matter in the indictment to apprise the defendant that the charge is for embezzlement. Although the party, in the language of the statute, ' shall be deemed to have committed the crime of simple larceny,' yet it is a larceny of a pecuhar char- acter, and must be set forth in its distinctive character.'' ' Commonwealth v. Wyman, 8 Metcalf, 247. The indictment in this case was founded on the Rev. Sts. of Mass. ch. 133, § 10, which enact, that "In any prosecution icx the offence of embezzling the money, bank-notes, checks, drafts, bills of exchange, or other securities for money, of any person, by a clerk, agent, or servant of such person, it shall be sufficient to allege gen- erally, in the indictment, an embezzlement of money to a certain amount, without specifying any particulars of such embezzlement, and on the trial, evidence may be given of any such embezzlement, committed within six months next afler the time stated in the indictment ; and it shall be sufficient to maintain the charge in the indictment, and shall not be deemed a vari- ance, if it shall be proved, that any money, bank-note, check, draft, bill of exchange, or other security for money, of such person, of whatever iamount, was fraudulently embezzled by such clerk, agent, or servant, within the said period of six months." In Commonwealth v. Wyman it was held, that this section did not include bank officers, and that a bank officer, when accused 188 EMBEZZLEMENT. [CHAP. XX. the same place, gentleman, at Charlestown aforesaid, in the county aforesaid, on the first day of April in the year of our Lord , the said Wyman, then and there being one of the directors and president of the Phoenix Bank, a corporation then and there duly and legally established, organized, and existing under and by virtue of the laws of the said Common- wealth, as an incorporated bank, and the said Brown being then and there cashier of the said bank, did, by virtue of their said respective offices and employments, and whilst the said Wyman and Brown were severally employed in their said respective offices, have, receive, and take into their possession certain money to a large amount, to wit, to the amount and sum of two hundred and 'twenty thousand dollars, and of the value of two hundred and twenty thousand dollars, divers bills, called bank-bills, amounting in the whole to the sum of one hundred and twenty thousand dollars, and of the value of one hundred and twenty thousand dollars,^ divers notes, called treasury notes, amounting in the whole to the sum of seventy- five thousand dollars, and of the value of seventy-five thou- sand dollars, of the goods and chattels, property and moneys of the said President, Directors, and Company of the Phoenix Bank,2 in their banking-house there situate, being; and the said money, biUs, and notes then and there unlawfully, fraud- ulently, and feloniously did embezzle, in the banldng-house of embezzlement, must be charged with a specific act of fraud, as in larceny at common law, and be proved guilty of the specific offence charged, and that not more than one offence could be alleged in one count of the indict- ment. But by St. 1845, ch. 215, the provisions of this section are extended to all prosecutions of a similar nature, against presidents, directors, cashiers, or other officers of banks. ' The descriptions of bank-bills, by amounts, value, by what bank issued, and by whom signed and countersigned, are sufficient without specifying the numbers of the bills, and the duty thereof. Bulloch v. The State, 10 Georgia, 47. ' The ownership may be laid in the person having the actual or construc- tive possession, or the general or special property in the whole, or in any part of the property. Kev. Sts. of Mass. ch. 133, § 11 ; Commonwealth v. Harney, 10 Metcalf, 426. CHAP. XX.] EMBEZZLEMENT. 189 aforesaid. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said Wyman and Brown then and there, in manner and form aforesaid, the aforesaid money, bills, and notes, of the goods, chattels, property, and moneys of the said President, Directors, and, Company of the Phcenix Bank, feloniously did steal, take, and carry away, in the bank- ing-house aforesaid ; against the peace of the Commonwealth afores.aid, and contrary to the form of the statute in such case made and provided. 2. Against a clerk for embezzlement. — Rev. Sts. of Mass. ch. 126, § 29.1. The jurors, etc., upon their oath present, that C. D. late of B. in the county of S., trader, on the first day of June in the ' In Massachusetts, it has been held, that there are a certain class of cases which do not come within the statute. Thus, in Commonwealth v. Lib- bey, 11 Metcalf, 64, that a person who is employed to collect bills for the proprietors of a newspaper establishment, and converts to his own use the money which he collects for them, is not such an agent or servant as is intended by section twenty-nine. In this case, Dewey, J., said, "In the case of a domestic servant, and to some extent, in the case of a special agency, the right of property and the possession continue in the princi- pal, and a disposal of the property would be a violation of the trust, and an act of embezzlement. But cases of commission-merchants, auctioneers, and attorneys authorized to collect demands, stand upon a different footing ; and a failure to pay over the balance due to their employers, upon their collec- tions, will not, under the ordinary circumstances attending such agency, sub- ject them to the heavy penalties consequent upon a conviction of the crime of embezzlement." And in Commonwealth v. Stearns, 2 Metcalf, 343, it was held, that an auctioneer, who receives money on the sale of his em- ployer's goods; and does not pay it over, but misapplies it, is not such an agent or servant as is intended by the statute ; whether he receives the goods for sale in the usual mode, or receives them on an agreement to pay a certain sum therefor, within a specified time after the sale. See The People v. Allen, 5 Denio, 76. By " the money or property of another," in the statute, is meant the money or property of any person except such agent, clerk, or servant, who embezzles it. A different construction would leave unprovided for, all cases of embezzlement by servants or agents, of the property of their masters or their principals. Commonwealth v. Stearns, ubi supra. See also The People v. Hennesey, 11 Wendell, 147. 190 EMBEZZLEMENT. [CHAP. XX. year of our Lord , 3.t B. in the county of S., being then and there the clerk ^ of one J. N., the said C, D. not being then and there an apprentice to the said J. N., nor a person under the age of sixteen years, did then and there, by virtue of his said employment, have, receive, and take into his pos- session certain money,^ to a large amount, to wit, to the amount of one thousand dollars, and of the value of one thou- sand dollars, of the property and moneys of the said J. N.,^ the said C. D.'s said employer, and the said C. D. the said money then and there feloniously* did embezzle,^ and fraudulently 1 An indictment under 2 Rev. Sts. of New York, 678, § 59, must aver that the defendant was a " clerk," or a " servant " of some person, or an officer, or agent of a corporation, and that the property he is charged with embezzling came to his possession, or under his care, hy virtue of such employment. An allegation that the defendant received the property as the " agent" of a per- son is insufficient. The People ti. Allen, 5 Denio, 76. A servant of partners may be described as the servant of any of the partners. Leech's case, 3 Starkie, N. P. Kep. 70. ' It is not necessary to allege from whom the money, etc., was received. Kex V. Beacall, 1 Carrington & Payne, 454. But the Court will order the prosecutor to furnish the defendant with a particular of the charges, if he make an affidavit that he does not know what the charges are, and that he has applied to the prosecutor for a particular, and it has been refused. Kex V. Bootyman, 5 Carrington & Payne, 300. And such particular ought, at least, to state the names of the persons from whom the money is alleged to have been received. Kex v. Hodgson, 3 Carrington & Payne, 422. It seems, that the question whether a bill of particulars or specification of facts shall be reqtSired, is in all cases, civil and criminal, exclusively within the discre- tion of the presiding judge. Commonwealth v. Giles, 1 Gray, 466. See ante, p. 56. ' The indictment must allege the owner of the property embezzled. It is not sufficient to allege that the defendant took it into his possession by virtue of his employment, or on account of his master. Rex v. McGregor, Russell & Ryan, C. C. 23 ; 2 Leach, C. C. (4th London ed.), 932 ; 2 East, P. C. 23 ; 3 Bosanquet & PtlUer, 106. * It is usual and prudent to allege that the defendant feloniously did em- bezzle, etc. ; but it is not absolutely necessary, if the conclusion charge that he feloniously stole. Rex v. Crighton, Russell & Ryan, C. C. 62. ' An allegation that the defendant did " embezzle, steal, take, and carry away " certain goods, is not bad for duplicity. The word " embezzle " may be rejected as surplusage, and the indictment be regarded as charging a lar- ceny only. Commonwealth v. Simpson, 9 Metcalf, 138. GHAP. XX.] EMBEZZLEMENT. 191 convert to his own use, without the consent of the said J. N., the said C. D.'s employer ; whereby, and by force of the statute in such case made and provided, the said C. D. is deemed to have committed the crime of simple larceny. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said C. D. then and there, in manner and form aforesaid, the said money, of the property and moneys of the said J. N., the said C. D.'s said employer, from the said J. N. feloniously did steal, take, and carry away ; against the peace of said Com- monwealth, and contrary to the form of the statute in such case made and provided. 3. Again&t a carrier for embezzlement. — Rev. Sts. of Mass. oh. 126, § 30.1 The jurors, etc., upon their oath present, that one J. N. on the first day of June in the year of our Lord , at F. in the county of M., did deliver to one J. S. late of, etc., the said J. S. being then and there a carrier, a certain large sum of money, to wit, the sum of one thousand doUars, and of the value of one thousand dollars, of the property and moneys of the said J. N., to be carried by the said J. S., for hire, to wit, for the sum of two dollars, and to be delivered by the said J. S., for the said J. N., and by the said J. N. sent and directed to one C. D. at B. in the county of S. ; and that the said J. S. did, by virtue of his said employment as a carrier, at F. afore- said, in the county aforesaid, and while he was so employed as aforesaid, take into his possession said money to be carried and delivered as aforesaid, and that the said J. S., carrier as * Carriers for hire could not, by the common law, commit larceny. Commonwealth v. Brown, 4 Mass. (Rand's ed.), 679. But this rule has been changed in Massachusetts, and in Maine. Kev. Sts. of Mass. ch. 126^ § 30; Kev. Sts. of Maine, ch. 156, § 7. Under the statute of Maine, if a person, to whom property is intrusted in Maine, to be carried for hire, and delivered in apother State, shall, before such delivery, fraudulently convert the same to his own use, the crime is punishable in Maine, whether the act of conver- sion be in that State or in another. The State v. HaskeU, 33 Maine, 127. 192 EMBEZZLEMENT. [CHAP. XX. aforesaid, afterwards, to wit, on the first day of June in the year of our Lord , at F. in the county of M., and before the money so delivered to him as aforesaid was by the said J. S. delivered to the said C. D. at B. in the county of S., feloni- ously did embezzle and fraudulently convert the same to his own use ; whereby, and by force of the statute in such case made and provided, the said J. S. is deemed to have com- mitted the crime of simple larceny. And so the jurors afore- said, upon their oath aforesaid, do say, that the said J. S., on the said first day of June in the year of our Lord , at F. in the county of M., in manner and form aforesaid, the said money, the property of the said J. N., from the said J. N. feloniously did steal, take, and carry away ; against the peace of said Commonwealth, and contrary to the form of the stat- ute in such case made and provided. CHAPTER XXI. EMBRACERY. 1. Indictment for embracery, by persuading a juror to give his verdict in favor of the defendant, and for soliciting- the other jurors to do the like.^ The jurors, etc., upon their oath present, that C. D. late of B. in the county of S., yeoman, on the first day of June in the year of our Lord , at B. aforesaid, in the county aforesaid, knowing that a jury of the said county of S. was then duly returned, impanelled, and sworn to try a certain issue joined in the Supreme Judicial Court, then held and in session according to law, at B. aforesaid, within and for the county of S., between E. F., plaintiff, and G. H., defendant, in an action of contract ; and then also knowing that a trial was to be had upon the said issue, on the first day of June in the year aforesaid, before the said Supreme Judicial Court, then and there held for the said county of S., the said C. D. wickedly and unlawfully intending and devising to hinder a just and lawful trial of the said issue by the jurors aforesaid, returned, impanelled, and sworn as aforesaid, to try the said issue, on the first day of June in the year aforesaid, at B. in the county aforesaid, unlawfully, wickedly, and unjustly, on behalf of the said G. H., the defendant in the said cause, did solicit and persuade one L J., one of the jurors of the said jury, returned, impanelled, and sworn according to law for the trial of said ' This precedent is taken, in substance, from Tremaine's Fleas of the Crown, (LcHidon ed. 1723,) 175. See Davis's Justice, (third ed.,) p. 433, 434. 17 194 EMBEACERT. [CHAP. XXI. issue, to appear and attend in favor of the said G. H., the said defendant in the said cause ; and then and there did say and utter to the said I. J., one of the jurors as aforesaid, divers words and discourses by way of commendation, on behalf of the said G. H., the said defendant, and in disparagement of the said E. F., the plaintiff; and that the said C. D. did then and there unlawfully and corruptly move and desire the said I. J., to solicit and persuade the other jurors returned, impan- elled, and sworn to try the said issue, to give a verdict for the said G. H., the defendant in the said cause, the said C. D. then and there well knowing that the said I. J. was one of the jurors returned, impanelled, and sworn to try the said issue ; and that the jurors of the said jury, by reason of speak- ing and uttering the words and discourses aforesaid, did give their verdict for the said G. H., the said defendant in the cause aforesaid;^ against the peace of the Commonwealth aforesaid, and contrary to the form of the statute in such case made and provided. ' The last allegation in this indictment, namely, that the jury gave their verdict for the defendant, by reason of the words, discourses, etc., is not necessary. The crime is complete by the attempt, whether it succeed or not. Hawkins, P. C. bk. 1, ch. 85, § 1, 2 ; 1 Deacon, Crim. Law, 378. CHAPTER XXII. ESCAPE. 1. Indictment against a constable for a negligent escape} The jurors, etc., upon their oath present, that on the first day of June in the year of our Lord , at the parish of B. in the county of M., J. S., then being one of the constables of the said parish, brought one J. N. before A. C, Esquire, then and yet being one of the justices of the peace within and for the county aforesaid, legally authorized and duly qualified to perform and discharge the duties of said office ; and the said J, N. was then and there charged before the said A. C. by one Catherine Hope, spinster, upon the oath of the said Catherine, that the said J. N. had then lately before, violently, and against her will, feloniously ravished and carnally known the said Catherine ; and the said J. N. was then and there examined before the said A. C, the justice aforesaid, touch- ing the said offence so to him charged as aforesaid; upon which the said A. C, the justice aforesaid, did then and there make a certain warrant under his hand and seal, in due form of law, bearing date the first day of June in the year afore- said, directed to the keeper of Newgate or his deputy, com- manding the said keeper or his deputy, that he should receive into his custody the said J. N., brought before him and charged upon the oath of the said Catherine Hope, with the premises above specified; and the said justice, by the said • Archbold, Crim. PI. (Am. ed. 1846), 652. 196 ESCAPE. [chap. XSII. warrant, did command the said keeper of Newgate, or his deputy, to safely keep the said J. N. there until he by due course of law should be discharged ; which said warrant after- wards, to wit, on the day and year aforesaid, at the parish aforesaid, in the county aforesaid, was delivered to the said J. S., ^en being one of the constables of the said parish as aforesaid, and then and there having the said J. N. in his cus- tody for the cause aforesaid ; a!nd the said J. S. was then and there commanded by the said A. C, the justice aforesaid, to convey the said J. N. without delay, to the said jail of New- gate, and to deliver the said J. N. to the keeper of the said jail, or his deputy, together with the warrant aforesaid. And the jurors aforesaid, upon their oath aforesaid, do further pre- sent, that the said J. S. late of the parish aforesaid,' in the county aforesaid, baker, afterwards, to wit, on the day and year last aforesaid, then being one of the constables of the said parish as aforesaid, and then having the said J. N. in his custody for the cause aforesaid, at the parish aforesaid, in the county aforesaid, the said J. N. out of the custody of the said J. S. unlawfully and negligently did permit to escape, and go at large whithersoever he would, whereby the said J. N. did then and there escape, and go at large whithersoever he would ; ^ to the great hinderance of justice, to the evil ex- ample of all others in the like case oifending, and against the peace, etc. 2. Another precedent for the same? The jurors, etc., upon their oath present, that on the first day of June in the year of our Lord , at the parish of B. in the county aforesaid, one E.. T. of, etc., came before J. B., then and yet being one of the justices of the peace, etc., as in the preceding precedent ; and the said R. T. did then and there on his oath before the same justice, charge, accuse. ' This allegation is not necessary. The State v. Maberry, 3 Strobhart, 144. ' Matthews, Crim. Law, 465. CHAP. XXII.] ESCAPE. 197 and give information against one A. B. of, etc., for a certain felony [^or, misdemeanor, as the case may 6e] in having feloni- ously [or, if it be a misdemeanor, unlawfully] stolen, taken, and carried away one silver tankard, of the value of fifty dol- lars, of the goods and chattels of the said K-. T. Whereupon the said J. B., the justice aforesaid, did then and there, at B. aforesaid, in the county aforesaid, make a certain warrant under his hand and seal in due form of law directed to the constable of B. aforesaid, in the county aforesaid, thereby requiring the said constable to take the body of the said A. B. and bring him before the said J. B., the justice aforesaid, to answer such matters and things as should be alleged against him touching the said felony [or, misdemeanor] ; which said warrant afterwards, to wit, on the same day and year aforesaid, at B. aforesaid, in the county aforesaid, was delivered to one A. C, then being constable of B. aforesaid, in due form of law to be executed ; by virtue of which said warrant the said A. C. afterwards, to wit, on the day and year aforesaid, at B. aforesaid, in the county aforesaid, did take and arrest the body of the said A. B., and the said A. B. had in the custody of the said A. C. for the cause aforesaid.* Nevertheless the said A. C, the constable of B. aforesaid, the duty of his office in that respect not regarding, afterwards, to wit, on the day and year aforesaid, at B. aforesaid, in the county aforesaid, unlawfully [feloniously] and negligently did permit the said A. B. to escape and go at large out of the custody of the said A. Cf whithersoever he would, and the said A. B. did then and there escape and go at large out of the custody of the said A. C. whithersoever he would ; to the great hinder- ance of justice, and against the peace, etc. 3. For not conveying' an offender to prison.^ The jurors, as in the preceding- precedent to the asterisk, and then proceed thus : before the said J. B., the justice aforesaid, ' Matthews, Crim. Law, 466. 17* 198 ESCAPE. [chap. XXII. and the said A. B. was then and there examined before the said J. B., the justice aforesaid, touching the said offence so to him charged as aforesaid ; upon w^ich the said J. B., the justice aforesaid, did then and there make a certain warrant under his hand and seal, in due form of law, bearing date the said first day of June in the year aforesaid, directed to R. O., the keeper of the jail of the said county, or his deputy, com- manding the said keeper or his deputy, that he should receive into his custody the said A. B., brought before him and charged upon the oath of the said R. T. with the premises above specified ; and the said justice, by the said warrant, did command the said keeper of the said jail or his deputy to safely keep the said A. B. there until he, by due course of law, should be discharged ; * which said warrant, afterwards, to wit, on the day and year aforesaid, at the parish aforesaid, in the county aforesaid, was delivered to the said A. C, then being one of the constables of the same parish as aforesaid, and then and there having the said A. B. in his custody for the cause aforesaid : and the said A. C. was then and there commanded by the said J. B., the justice aforesaid, to convey the said A. B., without delay, to the said jail, and to deliver the said A. B. to the keeper of the said jail or his deputy, together with the warrant aforesaid.f And the jurors afore- said, upon their oath aforesaid, do further present, that the said A. C. late of the parish aforesaid, in the county aforesaid, baker, afterwards, to wit, on the day and year last aforesaid, then being one of the constables of the said plirish as afore- said, and then having the said A, B. in his custody for the cause aforesaid, at the parish aforesaid, in the county afore- said,J unlawfully and wilfully neglecting his duty in that be- half, did not convey the said A. B. without delay to the said jail, and deliver the said A.' B. to the keeper of the said jail or his deputy, together with the warrant as aforesaid ; to the great hinderance of justice, to the evil example of all others in the like case offending, and against the peace, etc. To use this precedent for a negligent escape, proceed to the %, and then as follows : the said A. B. out of the custody of the CHAP. XXn.] ESCAPE. 199 said A. C. unlawfully and negligently did permit to escape and go at large whithersoever he wo^ild, whereby the said A. C. did then and there escape and go at large whithersoever he would ; to the great hinderance of justice, etc., concluding, as above. 4. Indictment for escaping- out of the custody of a constable.^ State the charge before the .magistrate, the warrant of com- mitment, and the deferidanVs being in the custody of J. S., as in precedent number one, to the asterisk, and then proceed thus : And the jurors aforesaid, upon their oath aforesaid, do further present, that the said J. N. late of the parish aforesaid, in the county aforesaid, laborer, so being in the custody of the said J. S., under and by virtue of the warrant aforesaid, afterwards, and whilst he continued in such custody, and before he was delivered by the said J. S. to the said keeper of Newgate, or his deputy, to wit, on the day and year last aforesaid, at the parish aforesaid, in the county aforesaid, out of the cus- tody of the said J. S. unlawfully did escape, and go at large whithersoever he would; to the great hinderance of justice, to the evil example of aU others in the like case offending, and against the peace, etc. 5. Indictment against a jailer for a voluntary escape? The jurors, etc., upon their oath present, that heretofore, to wit, at the general quarter-sessions of the peace holden at , so continuing the record of the conviction of the party who escaped, stating it, however, in the past and not in the present tense, then proceed thus : as by the record thereof more fuUy and at large appears ; which said judgment still remains in full force and effect, and not in the least reversed or made void. And the jurors first aforesaid, upon their oath aforesaid. ' Archbold, Crim. PI. (Am. ed. 1846), 653. • Archbold, Crim. PI. (Am. ed. 1846), 654. 200 ESCAPE. [chap. XXII. do further present, that afterwards, to wit, at the said general quarter-sessions of the peace above mentioned, the said J. N. was then and there committed to the care and custody of J. S., the said J. S. then and still being keeper of the common jail in and for the said county of Berks, there to be kept and im- prisoned in the jail aforesaid, according to and in pursuance of the judgment and sentence aforesaid ; and the said J. S. the said J. N. then and there had in the custody of the said J. S. for the cause aforesaid, in the jail aforesaid. And the jurors first aforesaid, upon their oath aforesaid, do further pre- sent, that the said J. S. late of the parish of L. in the said county of Berks, yeoman, afterwards, and before the expira- tion of the six calendar months for which the said J. N. was so ordered to be imprisoned as aforesaid, and whOst the said J. N. was so in the custody of the said .T. S. as such keeper of the, said common jail as aforesaid, to wit, on the first day of June in the year last aforesaid, at the parish aforesaid, in the county aforesaid, feloniously, if the offence for which J. N, was convicted were a felony, unlawfully, voluntarily, and con- temptuously did permit and suffer the said J. N. to escape, and go at large whithersoever he would ; whereby the said J. N. did then and there escape out of the said prison, and go at large whithersoever he would; contrary to the duty of the said J. S., so being keeper of the jail aforesaid, in manifest hinderance of justice, to the- evil example of aU others in the like case offending, and against the peace, etc. 6. Indictment for breaking prison.^ The jurors, etc., upon their oath present, that on the first day of June in the year of our Lord , J. S. then and yet being one of the justices of the peace within and for the county of M., legally authorized and duly qualified to discharge and perform the duties of that office, one J. N. was then and there charged before the said J. S., by one ' Archbold, Criin. PI. (London ed. 1853), 637. CHAP. XXn.] ESCAPE. 201 Catherine Hope, spinster, upon the oath of the said Cathe- rine, that the said J. N. had then lately before, violently, and against her wiU, feloniously ravished and carnally known the said Catherine ; and the said J. N. was then and there exam- ined before the said J. S., the justice of the peace aforesaid, touching the said offence so to him charged as aforesaid; upon which the said J. S., justice of the peace as aforesaid, did then and there make a certain warrant of commitment under his hand and seal, in due form of law, bearing date the said first day of June in the year aforesaid, directed to the keeper of the jail situated at C. in said county, commanding the said keeper that he should receive into his custody the said J. N., brought before him and charged, upon the oath of the said Catherine Hope, with the premises above specified; and the said justice of the peace, by the said warrant, did command the said keeper of the jail situated at C, in the county of M., to safely keep the said J. N. there until he by due course of law should be discharged ; by virtue of which said warrant, afterwards, to wit, on the day and year afore- said, the said J. N. was taken and conveyed to the said jail at C. aforesaid, and then and there delivered to one "W. S., the keeper of the said jail ; and the said W. S., keeper of the said jail, then and there received the said J. N. in his custody in the jail at C. aforesaid. And the jurors aforesaid, upon their oath aforesaid, do ftirther present, that the said J. N. afterwards, and whilst he so remained in custody of the said W. S., keeper of the said jaU, under and by virtue of the war- rant aforesaid, to wit, on the third day of September in the year last aforesaid, feloniously, if he loas committed for trea- son or felony, unlawfully, wilfully, and injuriously did break the jail situated at C. aforesaid, by then and there cutting and sawing two iron bars of the said jail, and by then and there breaking, cutting, and removing a great quantity of stone, parcel of the wall of the jail aforesaid; by means whereof the said J. N. did then and there escape and go at large whithersoever he would ; against the peace of said Com- monweedth, and contrary to the form of the statute in such case made and provided. 202 ESCAPE. [chap. XXII. 7. For conveying instruments to a prisoner to enable him to escape} The jurors, joroceerf as in numbers two, three, and six respec- tively, to the asterisk, and then thus : And the jurors aforesaid, upon their oath aforesaid, do further present, that .1. T. late of the parish of B. in the county of S., laborer, afterwards, and whilst the said A. B. was and remained in the custody of the said S. W., in the jail of Newgate aforesaid, namely, on the first day of June in the year last aforesaid, at the parish afore- said, in the county aforesaid, feloniously and unlawfully did convey, and cause to be conveyed, into the said jail of New- gate, two steel files, being instruments proper to facilitate the escape of prisoners; and the same files, being such instru- ments as aforesaid, then and there feloniously did deliver, and cause to be delivered, to the said A. B., without the consent or privity of the keeper or underkeeper of the said jail of Newgate, the said A. B. then and there being a prisoner in the said jail, and then and there lawfully detained for the fel- ony and larceny aforesaid, in the said warrant of commitment above mentioned and expressed, and that the said files, being such instruments as aforesaid, were then and there so con- veyed into the said jail, and delivered to the said A. B. by the said J. T. as aforesaid, with the felonious intent then and there to aid and assist the said A. B., so being such prisoner and in custody as aforesaid, to escape and attempt to escape from and out of the said jail; against the peace, etc., and contrary to the form, etc. ' 1 Matthews, Crim. Law, 468. An indictment on St. Geo. 4, ch. 64, § 43, which enacts, that " if any person shall, by any means whatever, aid and assist any prisoner to escape," etc., it is not necessary to set forth the means em- ployed by the defendants for that purpose. HoUoway v. Begina, 2 Denison, C. C. 287 ; 5 Eng. Law and Eq. Rep. 310. CHAPTER XXIII. EXTORTION. An indictment for •extortion must allege that the defend- ant took so much extorsive and colore officii, which are words as essential as proditorie ox felonies in indictments for treason and felony .1 The sum which the defendant received must be stated ; but it is not material to prove the exact sum as laid.^ Where nothing was due, that fact ought to be averred ; and where any thing was due, the sum that might have been law- fully taken must be averred.^ It is not necessary that the thing extorted should be said to be the property of any per- son. The word extort has a certain technical' meaning, and when a person is charged with extorsively taking, the very import of the word shows that he is not acquiring possession of his own.* 1. Indictment against a constable for extortion.^ The jurors, etc., upon their oath present, that J. S. late of the ' It is sufficient to charge generally, that the defendant took the money, by color of his office, without specifying that he received it as fees, or to his own use. The People v. Whaley, 6 Cowen, 661. See The State v. Stotts, 5 Blackford, 460. " Gahbett, Crim. Law, 784. See Emory v. The State, 6 Blackford, 106 ; Seany v. The State, 6 Blackford, 403 ; The State v. Dickens, 1 Haywood, (N. Carolina,) 406. ' Lake's case, 2 Leonard, 268 ; The State v. Coggswell, 3 Blackford, 54 ; Rex V. Burdett, 1 Lord Baymond, 149 ; Kex v. Gilham, 6 Term Eep. 265 ; Halsey v. The State, 1 Southard, 324 ; Spence v. Thomson, 11 Alabama, 746, 750; Boothby, Crim. Law, (London ed. 1854,) 107. * Kegina v. Tiddeman, 4 Cox, C. C. 387, (1850). « Archbold, Crim. PI. (Am. ed. 1846), 687. 204 EXTORTION. [chap. XXIII. parish of B. in the county of M., baker, on the first day of June in the year of our Lord , then being one of the constables of the said parish, at the parish aforesaid, in the county afore- said, did take and arrest one J. N., by color of a certain war- rant, Commonly called a bench warrant, which the said J. S. then and there alleged to be in his possession ; and that the said J. S. afterwards, and whilst the said J. N. so remained in his custody as aforesaid, to wit, on the day and year afore- said, at the parish aforesaid, in the county aforesaid, unlaw- fully, wilfully, corruptly, deceitfully, extcfrsively, and by color of his said office, did extort, receive, and take of and from the said J. N. the sum of ten dollars, as and for a fee due to the said J. S. as such constable as aforesaid, for the obtaining and discharging of the said warrant, as the said J. S, then and there alleged ; whereas, in truth and in fact, no fee whatever was then due from the said J. N. to the said J. S. as such constable as aforesaid in that behalf; to the evil and per- nicious example of all others in the lik6 case offending, against the peace, etc., and contrary to the form of the statute in such case made and provided. CHAPTEE XXIV, FOBCIBLE ENTRY AND DETAINER. An indictment will lie at common law for the offences of forcible entry or detainer, although it is generally brought on the statutes.^ With respect to the form of an indictment upon those statutes, it is to be observed that no particular or technical words are necessary to describe the force with which the entry is made ; though as the St. 5 Uic. 2, ch. 8, which is the foundation of the other statutes, prohibits entries with " strong hand," or " with multitudes of people," these are the apt words to designate the offence. Equivalent words will, however, it seems, be sufficient ; as all that is required in that respect is, that it should appear by the indictment, that such force and violence have been used as constitute a public breach of the peace. But neither at common law, nor under the statutes, will it be sufficient to allege merely that the party entered vi et armis, because that is the common allega- tion in every action of trespass. The words " with a strong hand " mean something more than a common trespass ; and an allegation that the entry was made unlawfully, with force and arms, and with a strong hand, is sufficient.^ The tenement in which the force was committed must be described with sufficient certainty ; for, otherwise, the defend- ant will neither know the particular charge to which he is ' Commonwealth v. Shattuck, 4 CnsWng, 141 ; The State v. Harding, 1 Greenleaf, (Bennett's ed.), 21 ; Wilmot, J., Kex v. Bake, 3 Burrow, 1731 ; Kex V. Bathurst, Sayer, 225 ; Lord Kenyon, Rex v. Wilson, 8 Term Eep. 357, 362. See The State v. Whitfield, 8 Iredell, 315. ' Commonwealth v. Shattuck, 4 Cushing, 141 ; Kex v. Wilson, 8 Term Kep. 362; Bex v. Bathurst, Sayer, 225; The State v. Pearson, 2 New Hampshire, 550. 18 206 FORCIBLE ENTRY AND DETAINER. [CHAP. XXIV. to make his defence, nor will the justice or aherifF know how to restore the injured party to his possession. But certainty to a reasonable intent is all that is required.^ Thus, an indictment of forcible entry " into a tenement," which may signify any thing wherein a man may have an estate of free- hold; or "into a house or tenement," or "into two closes of meadow or pasture," " a rood or half a rood of land," or such like uncertain or equivocal description, is not good ; but aa indictment for a forcible entry "in domum, mansionalem, sive messuagium" has been held sufficient. And so an indictment, for an entry into a close called Sergeant Hern's close, with- out adding the number of acres, is sufficient ; for here is as much certainty as is required in an ejectment.^ And it has been held, that an indictment may be void as to such part of it only as is uncertain, and good for so much as is certain. Thus an indictment for a forcible entry into a house and cer- tain acres of land, may be quashed as to the land, and stand good as to the house ; and so vice versd, if the uncertainty be in the description of the house, and not of the land.^ ' Torrence v. The Commonwealth, 9 Barr, 184 ; Vanpool v. The Common- wealth, 13 Pennsylvania State Kep. 391. « 1 Hawkins, P. C. ch. 28, § 7; 1 Gabbett, Crim. Law, 327; The State v. Butler, Cameron & Norwood, 331. And see McNair v. Rempublicam, 4 Yeates, 326. It is sufficient to describe the premises as " a certain close of two acres of arable land, situate in S. township, in the county of H., being part of a large tract adjoining lands of A. B. and C. D." A description of the premises was held sufficient, which gave the number of acres, town, county, and two adjoining tracts of land. Dean v. The Commonwealth, 3 Sergeant & Kawie, 418. The following is also a sufficient description: "A certain messuage and tract of land, situated in the township and county aforesaid, and described as follows : All that piece of land containing seventy- six acres and one hundred and fifty perches, and the allowance of six per cent., it being a part of a large tract, known as the Peter Jackson improve- ment, adjoining lands of David Henderson on the east." And such descrip- tion, together vrith the averment that the prosecutrix was seized of the prem- ises, in her demesne as of fee, will support a judgment of restitution. Van- pool V. The Commonwealth, 13 Pennsylvania State Rep. 391. ' Farnam's case, 2 Leonard, 186; Wroth and Capell's case, 3 Leonard, 102; 1 Gabbett,- Crim. Law, 327. CHAP. SXIV.J FORCIBLE ENTEY AND DETAINEE. 207 The indictment ought to show that the entry was made on the possession of some person who had had some estate in the tenement; either as a freeholder or lessee for years, etc., for otherwise it does not appear that such entry was injurious to any one ; and if it did not appear what estate the person ex- pelled had in the premises, it would be uncertain whether any of the statutes relating to forcible entries extended to the estate from which the expulsion was made.^ And therefore an indictment setting forth in general that the party was pos- sessed, is not good ; for it may be intended that he was pos- sessed only by virtue of a lease at will, to which none of the statutes extend.^ But, at common law, where the prosecutor is not entitled to restitution or damages, and where all force of this kind is punishable without regard to what estate the party had on whom the entry is made, it appears to be suffi- cient to state that the prosecutor was in possession of the premises.^ But even in an indictment under the statutes, it is sufficient, if there are such words as necessarily imply such an estate as is within the statute ; as where it is expressly laid, that the defendant disseized J. S., etc., it is implicitly charged that J. S. was seized of the fi-eehold at the time.* A repugnancy in setting forth the offence in an indictment on those statutes is, as in other indictments, an incurable fault ; as if it set forth a disseizin of such an estate whereof it is impossible that any man can be disseized ; as a term for years or copyhold ; or if the indictment state the disseizin to be of land then and still being the freehold of J. S. ; inas- much as it implies that J. S. always continued in possession, which, if true, makes it impossible that he could be disseized ' Eex V. Wannop, Sayer, 142 ; Rex v. Dorny, Salkeld, 260 ; 1 Ventris, 89. See The State v. Butler, 1 Taylor, 269. ' The State v. Speirin, 1 Brevard, 119. See Kespublica v. Campbell, 1 Dallas, 354 ; The State v. Pearson, 2 New Hampshire, 550. ' The State v. Speirin, 1 Brevard, 119; The State v. Harding, 1 Green- leaf, (Bennett's ed.), 21. See Eegina v.. Child, 1 Cox, C. C. 102. * 1 Hawkins, P. C. ch. 28, § 38 ; 1 Gabbett, Crim. Law, 328. 208 FORCIBLE ENTRT AND DETAINEE. [CHAP. XXIV. at all.^ But a disseizin is sufficiently set forth by alleging that the defendant " entered into such a tenement, and, with a strong hand, the said A. B. disseized, or expelled ; " and it will be intended thereby that the disseizin was at the same time and place with the entry; for the forcible entry being the principal offence within the purview of these statutes, the disseizin is only added to show that the party grieved had a right to restitution ; and the word " disseized " does in itself also imply that the defendant unlawfully ousted or expelled the party from the tenement,^ and also a previous seizin.^ The indictment cannot warrant an award of restitution, unless it find that the wrongdoer both ousted the party grieved, and also continued his possession at the time of the finding of the indictment ; for it is a repugnancy to award restitution of possession to one who was never in possession ; and it is vain to award it to one who does not appear to have lost it* It seems to be noway material to an indictment for a forcible detainer, whether it appears that the entry was for- cible or not ; because from the words of the statute it appears that a forcible detainer is a distinct offence from that of a for- cible entry, and noway depending upon it.^ 1. For forcible eniry and detainer at common law.^ The jurors, etc., upon their oath present, that A. B. late of the parish of B. in the county of M., gentleman, C. D. of the same parish, carpenter, and E, F. of the same parish, laborer, together with divers other persons, to the number of or more, whose names to the jurors aforesaid are un- known, on the first day of June in the year of our Lord ' 1 Hawkins, P. C. ch. 28, § 39 ; 1 Gabbett, Crim. Law, 328. See Res- publica V. Shryber, 1 Dallas, 68. ° Baude's case, Croke, Jac. 41 ; 1 Hawkins, P. C. ch. 28, § 42. " Commonwealth v. Fitch, 4 Dallas, 212. * 1 Hawkins, P. C. ch. 28, § 41 ; 1 Gabbett, Crim. Law, 328. » 1 Hawkins, P. C. ch. 28, § 46. " Matthews, Crim. Law, 475. CHAP. XXIV.J FOKCIBLE ENTRY AND DETAINEE. 209 , with force and arms, to wit, with pistols, swords, sticks. staves, and other offensive weapons, at the parish aforesaid, in the county aforesaid, into a certain messuage with the appurtenances, and a certain orchard there situate and being, and then and there in the possession of one R. T., unlawfully, violently, forcibly, injuriously, and with a strong hand did enter ; and the said A. B., C. D., and E. F., together with the said other evil-disposed persons, whose names to the jurors aforesaid are unknown, as aforesaid, then and there with force and arms, to wit, with pistols, swords, sticks, staves, and other offensive weapons, unlawfully, violently, forcibly, injuriously, and with a strong hand, the said A. B. from the possession of the said messuage with the appurtenances, and from the possession of the said orchard, did expel, amove, and put out ; and the said A. B., so as aforesaid expelled, amoved, and put out from the possession of the said messuage with the appurtenances and orchard, then and there with force and arms, to wit, with pistols, swords, sticks, staves, and other offensive weapons, unlawfully, violently, forcibly, injuri- ously, and with a strong hand, did keep out, and still do keep out, and other wrongs to the said A. B. then and there did ; to the great damage of the said A. B., and against the peace, etc. 2. For a forcible entry into a freehold, on St. 5 R. 2, ch. 8.^ The jurors, etc., upon their oath present, that one J. N. late of the parish of B. in the county of M., on the first day of June in the year of our Lord , in the parish aforesaid, in the county aforesaid, was seized in his demesne as of fee of and in a certain messuage, with the appurtenances there situ- ate and being. ; and the said J. N., being so seized thereof as aforesaid, J. S., late of the parish aforesaid, in the county aforesaid, laborer, afterwards, to wit, on the day and year last aforesaid, in the parish aforesaid, in the county aforesaid, into thesaid messuage and appurtenances aforesaid, with 1 Archbold, Crim. PI. (London ed. 1853,) 682 ; Matthews, Crim. Law, 474. 18* 210 FORCIBLE ENTRY AND DETAINER. [CHAP. XXIV. force and arms, and with a strong hand, unlawfully did enter, and the said J. N. from the peaceable possession of the said messuage, with the appurtenances aforesaid, then and there with force of arms, and with a strong hand, unlawfully did expel and put *out ; and the said J. N. from the possession thereof so as aforesaid," with force and arms, and with a strong hand, being unlawfully expelled and put out, the said J. S. from the aforesaid first day of June in the year aforesaid, until the day of the taking of this inquisition, from the posses- sion of the said messuage, with the appurtenances aforesaid, with force and arms, and with a strong hand, then and there unlawfully and injuriously did keep out, and still doth keep out; to the great damage of the said J. N., contrary to the form of the statute in such case made and provided, and against the peace, etc. 3. Indictment for a forcible entry into a leasehold, etc., on St. 21 J. 1, ch. 15.1 This may be the same as the last precedent, with such alter- ations only as are necessary to adapt it to a term for years, etc., as thus : that J. N. late of, etc., etc., was possessed of a cer- tain messuage with the appurtenances there situate and being, for a certain term of years, whereof divers, to wit, ten years, were then to come, and are still unexpired ; and the said J. N. being so possessed thereof, etc., etc., as in the last precedent. 4. For a forcible detainer, on St. 8 H. 6, ch. 9, or 21 J. 1, ch. 15.2 The same as in the last two precedents respectively, to the end of the statement of the seizin or possession ; then proceed thus : and the said J. N. being so seized [or, possessed] thereof, ^ Archbold, Crim. PI. (London ed. 1853,) 684; Matthews, Crim. Law, 475. ' Archbold, Crim. PI. (London ed. 1853,), 684 ; Matthews, Crim. Law, 475. CHAP. XXIV.J rOBCIBLB ENTRY AND DETAINEE. 211 J. S. late of the parish aforesaid, in the county aforesaid, laborer, afterwards, to wit, on the day and year aforesaid, at the parish aforesaid, in the county aforesaid, into the said messuage, with the appurtenances aforesaid, unlawfully did enter, and the said J. N. from the peaceablfe possession of the said messuage, with the appurtenances aforesaid, then and there unlawfully did expel and put out; and the said J. N. from the possession thereof so as aforesaid being unlaw- fully expelled and put out, the said J. S., from the said first day of June in the year aforesaid, until the day of the taking of this inquisition, from the possession of the said messuage, with the appurtenances aforesaid, with force and arms, and with a strong hand, unlawfully and injuriously then and there did keep out and the said messuage with the appurtenances and the possession thereof then and there unlawfully and for- cibly did hold, and still doth hold, from the said J. N. ; to the great damage of the said J. N., contrary to the form of the statute in such case made and provided, and against the peace, etc. CHAPTER XXV. It is necessary to consider the manner in which the offence is to be laid in the indictment. And the first general rule upon this subject is, that the indictment must not only set out, but it must also profess to set out, the instrument alleged to be forged, according to its tenor, that is, in the words and figures thereof; in order that the court may see how far it be any of those instruments, the falsely making or knowingly uttering of which the law has said shall be considered for- gery ; although, in general, neither figures nor abbreviations are proper to be used in indictments. And so strict was this rule conceived to be, that in one case it was made a ques- tion, whether substituting the word " undertood " for " under- stood " was not a fatal variance.^ And in another case, the ' Rex V. Gilchrist, 2 Leach, C. C. (ith London ed.), 657, 661 ; Common- wealth V. Wright, 1 Gushing, 46 ; Wright v. Clements, 3 Barnewall & Alder- son, 508 ; The State v. Gustin, 2 Pouthard, 744 ; The State v. Twitty, 2 Hawks, 248; 2 East, P. C. 975; 1 Gabbctt, Crim. Law, 370. And see Regina v. Coulson, 1 Temple & Mew, C. C. 332 ; 4 Cox, C. C. 227; 1 Den- ison, C. C. 592 ; 1 Eng. Law and Eq. Rep. 550 ; ante, p. 90. The number of a bank-bill, and the words and figures in the margin, and the vignettes need not be set out. It is sufficient to set out what constitutes the contract of the bill ; but that must be done truly and precisely. Commonwealth v. Taylor, 5 Gushing, 605 ; Commonwealth v. Wilson, Mass. Sup. Jud. Court, Middlesex, Oct. T. 1854; Commonwealth v. Searle, 2 Binney, 332; Com- monwealth V. Bailey, 1 Mass. 62 ; Commonwealth v. Stevens, 1 Mass. 324 ; The State v. Carr, 5 New Hampshire, 267. « Rex ti. Beech, Cowper, 229 ; 2 Leach, C. G. (4th London ed.), 133. CHAP. XXV.] FOKGERT AND COUNTERFEITING. 213 changing the words " value received " into " value reiceved " in setting forth the instrument, was insisted on as a fatal ob- jection to the indictment.^ These objections were however overruled, upon the principle established in Regina v. Drake, namely, " That unless the omission or addition of a letter does so change the word as to make it another word, the variance is not material." ^ And in another ease, it was at first doubted whether the indictment was sufficiently proved, because it included the attestation qf the witness, and the words " Mary Wallace, her mark," in the tenor of the note charged to have been forged ; the fact being, that when the prisoner subscribed the note, those parts of it were not then written. But Perrot, B., and Aston, J., whom the Recorder consulted, being of opinion that the indictment was well proved, he directed the jury accordingly. For which decision this reason may be assigned, that the addition of the attesta- tion of the witness, and of the words " his or her mark," were on this occasion, as they usually are, concomitant with that mode of executing the instrument, and a part of the same transaction.^ We may here observe, that when the instru- ment which is the subject of the forgery is set forth according to its tenor, no technical form of words is necessary for ex- pressing that the instrument is so set forth. And therefore it was decided, that the words " a certain receipt for money, as follows, that is to say," were as certain as if it had been said " according to the tenor following, that is to say." * Where the instrument on which the indictment rests is in the defendant's possession, or cannot be produced, and there is no laches on the part of the government, it is necessary to aver in the indictment such facts as are sufficient to excuse- the non- description of the instrument, and then to proceed, either by • Kex V. Hart, 1 Leach, C. C. (4th London ed.), 145 ; 2 East, P. C. 977. ' Salkeld, 660 ; 1 Starkie, Crim. PI. (London ed. 1828,) 101 ; United States V. Hinman, Baldwin, 292; The State v. Bean, 19 Vermont, 530; The State v. Weaver, 13 Iredell, 491. » Kex V. Dunn, 2 East, P. C. 976. * Kex V. Powell, 1 Leach, C. C. 77 ; 2 East, P. C 976. 214 PORGERY AND COUNTERFEITING. [CHAP.XXV. stating its substance, or by describing it as an instrument which cannot be set forth by reason of its loss, destruction, or detention, as the case may be.^ The instrument which the defendant is charged with forg- ing, etc., is sometimes described as the instrument, and some- times as purporting to be the instrument, the counterfeiting of which is prohibited by the statute on which the indictment is framed ; and the latter mode of describing it has been held to be equally good as the former. And it has been said, that in strictness of language, there may be more propriety in so laying it, considering that the purpose of the indictment is to disaffirm the reality of the' instrument.^ Where the prisoner was indicted for forging and knowingly uttering a bill of ex- change, described in the indictment to be " a certain bill of exchange, requiring certain persons, by the name and descrip- tion of Messieurs Down, etc., twenty days after date, to pay to the order of R. Thompson, the sum of 3151., value received," and signed by Henry Hutchinson for T. G., and H. Hutch- inson, etc. ; and the indictment then proceeded to set out the bill ; on proof that the signature " Henry Hutchinson " was a forgery, it was objected, that the indictment averring it to have been signed by him, and not merely that it purported to have been signed by him, which was a substantial alle- gation, was disproved ; and the case being referred to the judges, they held the objection to be a good one.^ Where the defendants were indicted and convicted of publishing, as a true wUl, a certain false, forged, and counterfeited paper writing, purporting to be the last will of Sir A. C, etc., the tenor of which was set out, it was objected that it should have been laid that they forged a certain will, and not a paper writing purporting, etc., the words of the statute being, "shall ^ Commonwealth v. Houghton, 8 Mass. 107; The State v. Bonney, 34 Maine, 223 ; The People v. Badgeley, 16 Wendell, 63 ; Hooper v. The State, 8 Humphreys, 93 ; The State v. Parker, 1 Daniel Chipman, 298 ; The State V. Potts, 4 Halsted, 26. ' 2 East, P. C. 980; 1 Gabbett, Crim. Law, 371. " Rex V. Carter, 2 East, P. C. 985. CHAP. XXV.] FORGERY AND COUNTBRFEITINQ. 215 forge a will ; " but, after a variety of precedents were pro- duced, the judges held it to be good either way.^ It is to be observed, that by the words " purporting to be " is to be understood the apparent, and not the legal import of the instrument ; whereas the " tenor " of an instrument means the exact copy of it. And accordingly, where the instrument was laid in some counts of the indictment to be a paper writ- ing purporting to be a bank-note, it. was held, that as it did not purport, on the face of it, to be a bank-note, not having been signed, the conviction could not be supported ; though it was in evidence in this case, that the bank frequently paid bank-notes which are fiUed by their officers, and entered by " them, though they happen not to be signed ; but the case was decided upon the principle, that though there need not be an exact resemblance to the thing supposed to be forged, yet the forged instrument must at least have the principal constituent parts of that which it is intended to represent ; which was wanting in this case.^ And where the bill was directed to John Ring, and the acceptance was by John King, the indict- ment having stated that the bill purported to be directed to John King by the name of John Ring, and that the prisoner forged the acceptance in the name of John King, the judg- ment was arrested, because the bill did not, in fact, purport to be drawn on or directed to John King, as laid in the indict- ment ; for the name and description of one person or thing could not purport to be another.^ And so where a check or order for payment of money was in fact directed to Messrs. Ransom, Moreland, and Hammersley, but in the indictment it was described as a paper writing, etc., purporting to be directed to George Lord Kinnaird, W. Moreland, and T. Hammersley, of, etc., bankers and partners by the name and ' Kex V. Birch and Martin, 1 Leach, C. C. (4th London ed.), 791 ; 2 East, P. C. 980 ; 2 Blackstone, Rep. 790. ' Kex V. Jones, Douglass, 300; 1 Leach, C. C. (4th Lendon ed.), 204; 2 East, P. C. 883, 952. ' Rex V. Reading, 1 Leach, C. C. (4th London ed.), 690 ; 2 East, P. C. 962. 216 FOEGBKY AND COUNTERFEITING. [CHAP. XXV. description of Messrs. Ransom, Moreland, and Hammersley, upon a conference of the judges, the judgment was arrested, upon the principle above laid down, that the purport of an instrument meant the substance of it, as it appeared on the face of the instrument to every eye which read it; and that this check or order could not purport to be directed to Lord Kinnaird, as his name did not appear on the face of it; the blunder having arisen from the circumstance that Lord Kin- naird and Messrs. Moreland and Hammersley had carried on the business of bankers under the firm of Messrs. Ransom, Moreland, and Hammersley.^ But it is not always sufficient to set out the instrument according to its tenor. As where the indictment was framed upon 43 Geo. 3, ch. 139, for the forgery of a Prussian treasury- note, and the instrument was set out on the record, and stated in the several counts to be " a promissory note for the pay- ment of money," " an undertaking for the payment of money," and " an order for the payment of money," and the prisoner being convicted, his counsel moved in arrest of judgment, on the ground that the false instrument was here set out only in a foreign language, and not translated or explained by other averments on the record ; and that the object of setting out the instrument in cases of libel and forgery was, that the court may judge whether it be what it is alleged to be, and whether it falls within the statute on which the prosecution is founded; and eight of the ten judges who met to con- sider the case were of opinion, that the objection was good ; and judgment was accordingly arrested.^ And where the instrument alleged to be forged was described in the indict- ment as " a certain paper instrument partly printed and partly written," though the instrument was set forth in the very words and figures of it ; yet the judges, upon a case reserved. ' Rex V. Gilchrist, 2 Leach, C. C. (4th London ed.), 657 ; 2 East, P. C. 982. And see Rei v. Edsall, 2 East, P. C. 984 ; Rex v. Reeves, 2 Leach, C. C. (4th London ed.), 808 ; Rex v. Birch, 1 Leach, C. C. (4th London ed.), 79 ; 2 East, P. C. 980 ; 2 Blackstone, Rep. 790. ' Rex V. Goldstein, Russell & Ryan, C. C. 473. CHAP. XXV.] FORGERY AND COUNTERFEITING. 217 held the indictment to be bad, as it did not state what the instrument was, in respect of which the forgery was alleged to have been committed, nor how the party signing it had authority to sign it.^ And where the tenor of the receipt, as set out in the indictment, was, " 1825, rec*!. H. H.," and no averment or innuendo to explain what was meant by these initials, the indictment was held to be insufficient.^ Though it is in general sufficient to charge that the defend- ant forged such an instrument, naming it, or describing it as purporting to be such an instrument as is within the words and meaning of the statute, etc., or setting forth the tenor of it, yet if the instrument does not purport on the face of it, and without rfeference to some other subject-matter, to be the thing prohibited to be forged, then such other subject-matter must be referred to by the indictment, and connected with the forgery by proper averments.' Thus, where the indictment charged the prisoner with forging a receipt to an assignment of a certain sum in a navy bUl, and the tenor of the receipt merely consisted of the signature of the party, it was held to be defective, on the ground that the mere signing of such name, unless connected with the practice of the navy office, did not purport on the face of it to be a receipt, and that it ought to have been averred, that such navy bill, etc., together with such signature, did purport to be, and was, a receipt, etc., and that the prisoner feloniously forged the same ; and that it was not sufficient, as here, to allege, generally, that the prisoner forged a receipt, which was a conclusion of law ; but facts must be stated to show the court that such conclusion was true.* But the words, " Settled, Sam. Hughes," written at the foot of a bill of parcels, were held of themselves to im- ' Kex II. Wilcox, Eussell & Eyan, C. C. 50. ^ Rex 17. Barton, 1 Moody, C. C. 141. See Regina v. Inder, 1 Denison, C. C. 325 ; 2 Carrington & Kirwan, 635. » 1 Gabbett, Crim. Law, 374 ; 2 East, P. C. 977. * Rex u. Hunter, 2 Leach, C. C. (4th London ed.), 624; 2 East, P. C. 977. 19 218 FORGERY AND COUNTERFEITING. [CHAP. XXV. port a receipt or acquittance, and that no averment was nec- essary ; that the word " settled " meant a receipt or acquit- tance.^ And where, on an indictment for forging a receipt, it appeared that the receipt was written at the foot of an account, and the indictment stated the receipt thus : " 18th March, 1773, received the contents above by me, Stephen Withers;" without setting out the account at the foot of which it was written, it was held sufficient." Another general rule touching the manner in which the offence is to be laid in the indictment is, that if any part of a true instrument be altered, the indictment may lay it to be a forgery of the whole instrument ; although it is more usual, and indeed advisable, to charge forgeries of this sort by stat- ing the particular alteration, at least in one set of counts. The defendant was found guilty of uttering a certain bill of exchange set forth in the indictment, knowing it to be forged ; and it appearing upon the trial that the bill was drawn for £10 only, and that it had been altered by changing the <£10 into £50 in the part of the bill where the sum is expressed in figures, as also in the part where it is expressed in letters, and, so altered, had been passed by the prisoner to T. P., the judg- ment was respited, the prisoner's counsel having objected, that this being a forgery, by altering the sum in a genuine bill, it should have been so stated in the indictment, the 7 Geo. 2, ch. 22, having made it a distinct offence to alter, by these words : " If any person shall falsely make, alter, forge, or counterfeit, or utter, etc., any false, altered, etc., bill of ex- change, etc." At a conference of the judges, they all held the conviction right, upon the principle, that every alteration of a true instrument, in a material part, to the prejudice of another, is a forgery of the whole instrument, being included within ' Rex V. Martin, 1 Moody, C. C. 483 ; 7 Carrington & Payne, 549 ; over- ruling Kex V. Thompson, 2 Leach, C. C. (4th London ed.), 910. And see Kex V. HousemaHf, 8 Carrington & Payne, 180; llegina v. Vaughan, 8 Car- rington & Payne, 180; Regina v. Boardman, 2 Moody & Kobinsoii, 147; Kegina v. Rogers, 9 Carrington & Payne, 41. ^ Rex V. Testick, 2 East, P. C. 925. CHAP. XXV.} FOEGBKY AND COUNTERFEITING. 219 the terms of the definition of forgery.^ But where the forgery is of something which is a mere addition or collateral to the instrument, and does not alter it, as when the indorsement or acceptance of a genuine bill of exchange is forged, then such forgery must be specially alleged, and must be proved as laid ; whereas, if the signature of the drawer, which is a part of the bill itself, be forged, it may be laid as a forgery of the entire bill.2 It is usual to charge that the party " falsely " forged and counterfeited, etc. But it is said to be enough to allege only that he " forged," or " counterfeited," without adding " falsely," which is sufficiently implied in either of those terms; but more particularly in the verb " to forge," which is always taken in an evil sense, in the law.^ "Where an exception was taken to the indictment as being repugnant, for stating that the party falsely counterfeited a. false writing, the indictment was held good.* The intent to defraud, which is essential to constitute this crime, must be stated in the indictment, and pointed at the particular person or persons against whom it is meditated.^- But it will be sufficient to describe the party intended to be ' Rex V. Teague, Russell & Ryan, C. C. 33 ; 2 East, P. C. 979 ; The State V. Weaver, 13 Iredell, 491. ' 1 Gabbett, Grim. Law, 375. = 2 East, P. C. 985 ; 1 Starkie, Grim. PI. (London ed. 1828) ; 1 Gabbett, Grim. Law, 375. * Rex V. Goate, 1 Lord Raymond, 737. ' In Massachusetts, the Rev. Sts. ch. 127, § 14, enact, that "In any case, where an intent to defraud is required to constitute the offence of forgery or any other offence that may be prosecuted, it shall be sufficient to allege, in the indictment, an intent to defraud, without naming therein the particular person or body corporate intended to be defrauded ; and on the trial of such indictment, it shall be sufficient, and shall not be deemed a variance, if there appear to be an intent to defraud the United States, or any State, county, city, town, or parish, or any body corporate, or any public officer, in his offi- cial capacity, or any copartnership or members thereof, or any particular person." But if a special intent to defraud is alleged, the allegation is a mate- rial one, and must be established by proof. Commonwealth v. Harley, 7 Metcalf, 506, 509 ; Gommonwealth v. Kellogg, 7 Gushing, 473, 476. 220 FORGERY AND COUNTEEFEITINa. [CHAP. XXV. defrauded, with reasonable certainty. And, accordingly, where it was moved in arrest of judgment, that the indict- ment charged the forged order for the payment of money to be directed to Messrs. Drummond and Company, by the name of Mr. Drummond, Charing Cross, whereas the names of the respective partners ought to have been set forth ; at a conference of the judges, they all held the indictment good. They were of opinion, that the words were not so senseless and unintelligible as not to import a certain description of persons ; that they must understand the words Messrs. Drum- mond and Company as everybody else did, namely, as mean- ing the partners in the partnership in the banking-house, and it was not necessary to state by name who the partners were ; which would be of dangerous consequence, as some of them might not be known ; that if the indictment had only stated, according to the fact, that the bill or order was directed to Mr. Drummond, Charing Cross, it would have been sufficient; and that, as the indictment was framed, the only question was, whether Drummond and Company was meant by the prisoner ; which fact was established by the verdict.^ But though it is necessary to describe, with sufficient cer- tainty, the persons who are meant to be defrauded, the indict- ment need not state the manner by which the fraud is to be effected. Thus one of the objections in Powell's case was, that the manner in which the forged receipt of stock was to operate in prejudice of Mr. Barrow, was not shown in the indictment ; that for this purpose it should have been averred that T. Barrow, whose name appeared to the forged receipt, meant Taylor Barrow, with intent to defraud whom the for- gery was laid in one of the counts; — that T. B. was the pro- prietor of so much stock ; — that the prisoner personated hira in the sale and transfer, etc., and transferred it to such a person in his name, etc. And it was also objected, that it was not sufficient merely to state that the forgery was committed to defraud T. B. generally. But the judges held it to be suffi- ' Rex V. Lovell, 1 Leach, C. C. (4th London ed.), 248 ; 2 East, P. C. 990. CHAP. XXV.J FOESEET ANP COTOTTERFEITING. 221 cient that the offence was described in the words of the act ; and that whether it were or were not meant to defraud Tay- lor Barrow, was matter of evidence for the jury, in support of that count.^ It is stated in East's Pleas of the Crown, as another ground for this judgment, that there was a second count, wherein the forgery was laid to be with intent to defraud one Sykes, to whom the stock had been sold ; and therefore, if there was no such person as Taylor Barrow, or if he had no stock, yet as the receipt had in form the constituent parts of a receipt for the transfer of East India stock, that was sufficient. And where a similar objection was made, namely, that it was not stated that the bill of exchange was uttered or tendered to the persons whom it was laid the prisoner meant to defraud ; and therefore, that it did not appear to the court, on the face of the indictment, that the transaction was such as those persons could be defrauded by it, which always was the case when the naqie of a drawer, acceptor, or indorser was forged, aU the judges, upon a conference, except BuUer, J., who started the objection, held, that, the indictment was good in this respect ; as it was sufficient to pursue the words of the act which constitutes the offence ; and that it was matter of evidence, whether the prisoner intended to de- fraud the persons named, by tendering the bill in payment to them, or how otherwise.^ When the indictment is founded upon a statute, it must, in general, according to the rule of pleading which is appli- cable to all offences, set forth the charge in the very words of the statute describing the offence ; equivalent words not being sufficient* But in a very recent English case, it has been held, that if the instrument be set out in hcBC verba, a misde- scription of it in the indictment will be immaterial, at least if any of the terms used to describe it be applicable. In this case, Parke, B., said, " The question may be very different if the indictment sets out the instrument, from what it would ' Kex V. Powell, 1 Leach, C. C. (4th London ed.), 77; 2 East, P. C. 989. ' Kex V. Elsworth, 2 East, P. C. 986, 989. ' 1 Gabbett, Crim. Law, 376. 19* 222 FORGERY AND COUNTERFEITINS. [CHAP. XXV. be if it merely described it in the terms of the statute. In the former case, the matter which it is contended is descriptive may be mere surplusage, for when the instrument is set out on the record, the court are enabled to determine its character, and so a description is needless.^ Where the prisoner was charged with uttering and publishing as true, a certain false, forged, and counterfeited bond and writing obligatory ; where it was ob- jected, that as the statute, in enumerating the several instru- ments, the forgery of which it prohibits, mentions both bond and writing obligatory, the indictment ought to have described the offence with more precision, either as a forgery of the one or the other ; and that in this case, the instrument was a writ- ing obligatory, and not a bond, as it had neither a defeasance nor penalty annexed to it ; and that although a bond was a writing obligatory, yet that the converse was not true. But, the judgment being respited, it was decided, that the instru- > Regina v. Williams, 2 Denison, C. C. 61 ; 1 Temple & Mew, C. C. 382; 4 Cox, C. C. 256 ; 2 Eng. Law and Eq. Rep. 533, (1850). In this case the indictment charged the defendant with having forged " a certain warrant, order, and request, in the words and figures following," etc. It was objected that the paper, being only a request, did not support the indictment, which described it as a warrant, order, and request. But it was held, that there was no variance, as the document being set out in full in the indictment, the description of its legal character became immaterial. Parke, B., suggested that the correct course would have been, to have alleged the uttering of one warrant, one order, and one request. " The principle of this decision seems to be," says the Reporter, "that where an instrument is described in an indictment by several designations, and then set out according to its tenor, either with or without a videlicet, the court will treat as surplusage such of the designations as seem to be misdescriptions, and treat as material only such designations as the tenor of the indictment shows to be really applicable. And where the indictment is so drawn as to enable the court to treat as material only the tenor of the indictment itself, all the descriptive averments may be treated as surplusage. The principal case seems reconcilable with Regina v. Newton, 2 Moody, C. C. 59, but to overrule Regina v. Williams, 2 Carrington and Kirwan, 51. See Bristowu. Wright, Douglass, 66 ; 1 Smith's Leading Cases (Am. ed. 1852), 629." In Regina v. Charretie, 3 Cox, C. C. 603, (1S49,) Davison, amicus curies, mentioned that Cresswell, J., in a subsequent case, had declined to act upon the authority of Regina v. Wil- liams, 2 Carrington & Kirwan, 51. CHAP. XXV.J FORGERY AND COUNTERFEITING. 223 ment was well described, and the conviction proper.^ And in Els worth's case, the principal objection was, that the indict- ment charged that the prisoner Aid feloniously alter, and cause to be Eiltered, a certain bill of exchange, by falsely making, forging, and adding a cipher to the letter and figure £S in the said bill, and also by falsely making, forging, and adding the letter y to the word eight. But the indictment was held good, though the words of the statute were, " if any person shall make, forge, or counterfeit," and the word alter or add is not used in this statute ; the judges being of opinion, that there was no difference in substance, or in the nature of the charge, whether the indictment was for feloniously altering by falsely making and forging, or feloniously making and forging by falsely altering, etc. ; for the false and fraudulent alteration of a writing may be treated as a forgery of the whole instrument.^ In all of the United States this offence is punishable by statute. Eut it will readily be perceived, that many things which may be the subjects of forgery, do not come within the statutes. Beyond the range of these statutes, the subject of forgery is taken up by the common law, whereby the deceit- ful, false, and fraudulent fabrication and use of all sorts of writings, is denounced and punished as criminal. The de- scriptions or denominations of the subjects of forgery in the statutes, are therefore material, principally in relation to the degree of punishment and the phraseology of the indictment.^ 1. Forgery at common law. The jurors, etc., upon their oath present, that C. D. late of B. in the county of S., laborer, on the first day of June in ' Eex V. Dunnett, 2 East, P. C. 985, 986. » Eex V. Elsworth, 2 East, P. C. 986, 989. ' Commonwealth v. Ayer, 3 Gushing, 150 ; 3 Greenleaf on Ev. § 102. See Kegina v. Boult, 2 Carrington & Kirwan, 604 ; The State i'. Ames, 2 Green- leaf, (Bennett's ed.), 336 ; Kegina v. Hartshorn, 6 Cox, C. C. 403 ; Regina V. Sharman, 6 Cox, C. C. 312 ; 24 Eng. Law and Eq. Rep. 553. 224 POBGERT AND COUNTERFEITING. [CHAP. XXV. the year of our Lord , at B. aforesaid, in the county aforesaid, falsely and fraudulently did make, forge, and coun- terfeit a certain will, purporting to be the last will of one J. N., which will is of the tenor following, that is to say, etc. ; with intent thereby then and there to cheat and defraud one E. F., against the peace, etc. 2. For uttering and publishing as true a forged promissory note. — Rev. Sts. of Mass, eh. 127, § 2.i The jurors, etc., upon their oath present, that C. D. late of B. in the county of S., laborer, on the first day of June in the year of our Lord , at B. aforesaid, in the county afore- said, had in his custody and possession a certain false, forged, and counterfeit promissory note, the said C. D. then and there knowing the same to be -false, forged, and counterfeit, which false, forged, and counterfeit promissory note is of the tenor following, that is to say, etc. ; and that the said C- D. did then and there feloniously utter and publish the same as true, with intent thereby then and there to injure and defraud one J. N. ; the said C. D. then and there knowing the said promissory note to be false, forged, and counterfeit ; against the peace of said Commonwealth, and contrary to the form of the stat- ute in such case made and provided. 3. For forging a promissory note. — Rev. Sts. of Mass. ch. 127, § 1.2 The jurors, etc., upon their oath present, that C. D. late of ' This precedent may be used and adapted to all the cases of uttering and publishing forged instruments which may be prosecuted upon the first section of the statute. ^ In an indictment for forging a promissory note, the indorsement need not be £et out, though it be forged. It is no part of the note. Commomvealth V. Adams, 7 Metcalf, 50; Commonwealth v. Ward, 2 Mass. 397. From the aiove precedent an indictment may readily be framed for forging any of the instruments mentioned in the first section of the statute. CHAP. XXV.] FORGERY AND COUNTERFBITINa. 225 B. in the county of S., laborer, on the first day of June in the year of our Lord , at B. aforesaid, in the county aforesaid, feloniously did falsely make, forge, and counterfeit a certain false, forged, and counterfeit promissory note, which false, forged, and counterfeit promissory note is of the tenor follow- ing, that is to say, etc., with intent thereby then and there to injure and defraud one J. N. ; against the peace of said Com- monwealth, and contrary to the form of the statute in such case made and provided. 4. For counterfeiting a hank-bill. — Rev. Sts. of Mass. ch. 127,- § 4. The jurors, etc., upon their oath present, that C. D. late of, etc., on the first day of June in the year of our Lord , at B. in the county of S., feloniously did falsely make, forge, and counterfeit a certain false, forged, and counterfeit bank-bill, payable to the bearer "thereof, purporting to be issued by the President, Directors, and Company of the Merchants Bank, then being an incorporated banking company established in this State, to mt, at B. in the county of S., and Common- wealth aforesaid, which said false, forged, and counterfeit bank-bill is of the tenor following, that is to say, etc., with intent thereby then and there to injure and defiraud one J. N. ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. 5. For having in possession at the same time, ten or more coun- terfeit bank-bills, with intent to utter and pass the same as true. — Rev. Sts. of Mass. ch. 127, § 5.i The jurors, etc., upon their oath present, that C. D. late of, etc., on the first day of June, at B. in the county of S., had in ' The mere possession of counterfeit coin, or bank-bills, with intent to utter as true, is not an indictable offence at common law. But an acl done, coupled with the possession and the intent to utter, rendered the offence indictable. 226 FORGERY AND COUNTERFEITING. [CHAP. XXV. his possession at the same time,^ ten similar false, forged, and counterfeit bank-bills, payable to the bearer thereof, purport- ing to be issued by the President, Directors, and Company of the Suffolk Bank, then being an incorporated banking com- pany established in this State, to wit, at B. in the county of S., and Commonwealth aforesaid, one^ of which said false, forged, and counterfeit bank-bUls is of the following tenor, that is to say ; ^ here insert a true copy of all and each of the ten hills; after inserting a true copy of the first, go on to say, one other of which said false, forged, and counterfeit bank-bills is of the following tenor, and so on with the whole of them ; the said C. D. then and there knowing each and every one of said bank-bills, to be false, forged, and counterfeit as afore- said, with intent then and there to utter and pass the same as true, and thereby then and there to injure and defraud one J. N. ; against the peace of said Commonwealth, and con- trary to the form of the statute in such case made and pro- vided. 6. For passing a counterfeit bank-hill. — Rev. Sts. of Mass. ch. 127, § 6. The jurors, etc., upon their oath present, that C. D. late of, etc., on the first day of June in the year of our Lord , at B. in the county of S., did utter and pass to one E. F. a certain false, forged, and counterfeit bank-bill, payable to the bearer thereof, purporting to be issued by the President, Dugdale v. Regina, Pearce, C. C. 64; \ Ellis & Blackburn, 435; 16 Eng. Law and Eq. Rep. 380 ; Regina v. Fulton, Jebb, C. C. 48 ; Rex v. Heath, Russell & Ryan, C. C. 184 ; Rex v. Fuller, Russell & Russell, C. C. 308. ' It is necessary to aver that the defendant had the bills in his possession at the same time. An averment that he had them in his possession on the same day, is not sufficient. Edwards v. The Commonwealth, 19 Pickering, 124. And see Rex v, Williams, 2 Leach, C. C. (4th London ed.), 529. ' If the defendant has retained possession of the bills, allege as follows: — " Each and every one of which said false, forged, and counterfeit bank-bills were then and there retained and kept by the said C. D., so that the jurors aforesaid cannot set forth the tenor thereof." Ante, p. 213, 214. CHAP. XXV.] FORGERY AND COUNTERFEITING. 227 Directors, and Company of the Suffolk Bank, then being an incorporated banking conipany established in this State, to wit, at B. aforesaid, in the county aforesaid, and Common- wealth aforesaid, which said false, forged, and counterfeit . bank-bill is of the tenor following, that is to say, etc., with intent thereby then and there to injure and defraud the said E. F., the said C. D. then and there knowing the said bank- bill to be false, forged, and counterfeit ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. 7. For having in possession a counterfeit bank-bill, with intent to pass the same. Rev. Sts. of Mass. ch. 127, § 8.^ The jurors, etc., upon their oath present, that C. D. late of, etc., on the first day of June in the year of our Lord , ' An indictment on St. 1804, ch. 120, § 4, which alleged that the defendant had in his possession a counterfeit bank-bill, " with intent to pass the same," was held sufficient, without the averment of an intent to pass the same " as true." Hopkins v. The Commonwealth, 3 Metcalf, 460. In this case, Chief Justice Shaw said, " This indictment was founded on St. 1804, ch. 120, § 4, which enacts, that if any person shall have in his possession within this State, any counterfeit bank-bill, etc., for the purpose of rendering the same current as true, or'with intent to pass the same, knowing the same to be counterfeit, etc. The provision in the statute is made in the alternative ; it is the guilty possession of the counterfeit note, with the guilty purpose of rendering the same current as true, or with intent to pass the same. The latter clause does not add the words, to pass the same ' as true.' The argument for the pris- oner, however, assumes that this must have been intended by the legislature, and therefore must be so charged in the indictment. But we cannot perceive that such was the plain intent of the legislature, when the words do not ex- press it. One object of the statute may have been to prevent one dealer in forged from passing counterfeit notes to another, as false notes, to enable and assist him in defrauding others. This is more probable from the use of the alternative words. The intent to render the same current ' as true,' is pro- vided for by the former clause. If the other clause was intended only to prohibit the intent to pass the same ' as true,' it would add nothing to the former provision ; it would only describe the same offence in other words. " But the omission of the words ' as true ' strengthens the conclusion, that the legislature intended further to prohibit the passing of counterfeit bank- 228 FORGERY AND COUNTERFEITING. [cHAP. XXV. at B. in the county of S., had in his possession a certain false, forged, and counterfeit bill, in the similitude of the bills payable to the bearer thereof, and issued by the President, Directors, and Company of the Boylston Bank, then being a banking company established in this State, to wit, at B. in the county of S., and Commonwealth aforesaid, which said false, forged, and counterfeit bank-bill is of the tenor follow- ing, that is to say, etc. ; with intent then and there to utter and pass the same, the said ' C. D. then and there knowing the said bank-bill to be false, forged, and counterfeit ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. 8. For making a tool to be used in cownterfeiting bank-notes. Rev. Sts. of Mass. ch. 127, § 9. The jurors, etc., upon their oath present, that C. D. late of, etc., on the first day of June in the year of our Lord , at B. in the county of S., did engrave and make a certain plate, the same being then and there an instrument and im- plement adapted and designed for the forging and making of false and counterfeit notes, in the similitude of the notes bills ' as money,' or to be used or passed as money, by any person, at any rate of discount, or otherwise, whether, as between him and the immediate receiver, they were passed as true or not. There is a case on another clause of the same statute which leads to the same construction. Commonwealth v. Cone, 2 Mass. 132. But then, it is said, this would give a greater effect to the word "pass," than that intended by the legislature; and would bring within the statute any person who innocently, and for any purpose, should hand over a counterfeit bill to another. But we think this would not be a just consequence. . The word ' pass,' as used in this statute, and generally, as applied to bank-notes, is technical, and means to deliver them as money, or as a known and conventional substitute for money. The word must be construed to have the same meaning when used in the statute as in the indict- ment ; and therefore, to sustain such an indictment, it must be proved, that the party who is charged, passed the counterfeit bill to another, for some valu- able consideration or otherwise, as for money, or to be used as money, with the guilty purpose of defrauding the community." And see Kegina v. Ion, 2 Denison, C. C. 475 ; 6 Cox, C. C. 1 ; 14 Eng. Law and Eq. Kcp. 556. CHAP. XXV.] PQKGERT AND COUNTERFEITrNG. 229 issued by the President, Directors, and Company of the Suf- folk Bank, then being a banking company legally established in this State, to wit, at B. in the county of S., and Common- wealth aforesaid ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. 9. For having in possession a tool to be used in counterfeiting bank-notes, with intent to use the same. — Rev. Sts. of Mass. ch. 127, § 9. The jurors, etc., upon their oath present, that C. D. late of, etc., on the first day of June in the year of our Lord 1 at C. in the county of M., feloniously had in his possession a certain engraved plate, the same being then and there an instrument adapted and designed for the forging and making false and counterfeit notes in the similitude of the notes issued by the President, Directors, and Company of the Mer- chants Bank, then being a banking company established in this State, to wit, at B. in the county of S., and Common- wealth aforesaid, with intent then and there to use the same in forging and making false and counterfeit notes in the simil- itude of the notes issued by the said President, Directors, and Company of the said Merchants Bank; against the peace of said Commonwealth, and contrary to the form of the stat- ute in such case made and provided. 10. For counterfeiting current coin. — Rev. Sts. of Mass. ch. 127, § 15. The jurors, etc., upon their oath present, that C. D. late of B. in the county of S., yeoman, on the first day of June in the year of our Lord , at B. aforesaid, in the county aforesaid, did counterfeit a certain piece of silver coin, current within this State, to wit, the Commonwealth aforesaid, by the laws and usages thereof, called a dollar ; against the peace of said Commonwealth, and contrary to the form of the stat- ute in such case made and provided. 20 230 FORGEBT AND COUNTERFEITING. [CHAP. XXV. 11. For having ten counterfeit pieces of coin, with intent to pass the same. Eev. Sts. of Mass. ch. 127, § 15.^ The jurors, etc., upon their oath present, that David R. Fuller, late of, etc., on the fifteenth day of April in the year of our Lord one thousand eight hundred and forty-four, at Lowell, in the county of Middlesex, had in his custody and possession, at the same time, ten similar pieces of false and counterfeit coin, of the likeness and similitude of the silver coin current within this Commonwealth, by the laws and usages thereof, called Mexican dollars, with intent then and there the said pieces of false and counterfeit coin to utter and pass as true, the said David R. Fuller then and there well knowing the same to be false and counterfeit ; against the peace of the Commonwealth, and contrary to the form of the statute in such case made and provided. 12, For having less than ten counterfeit pieces of coin, with intent to pass the same as true, — Rev. Sts. of Mass. ch. 127, § 16.2 The jurors, etc., upon their oath present, that Josiah ' The courts of Massachusetts have jurisdiction of the offence of haying false money, counterfeited in the similitude of any gold or silver coin current by law or usage Tvithin the State, knowing the same to be false and counter- feit. Commonwealth u. Fuller, 8 Metcalf, 213. The substance of the crime is the possession of counterfeit coin, with the guilty knowledge and intent indicated, and this is a substantive offence, whether the number of pieces be over or under ten. Therefore, upon an indictment on this statute, charging the defendant with having more than ten pieces, proof of his having less than ten will warrant a conviction, and the convict may be sentenced under the sixteenth section of the statute. Commonwealth v. Griffin, 21 Pickering, 523. See Kex v. EUins, Russell & Ryan, C. C. 187. * In Commonwealth v. Stearns, 10 Metcalf, 256, this indictment was held sufficient, without giving any further description of the dollar. And it was held to be supported by proof that the defendant had in his possession a coin, counterfeited in the similitude of a Mexican dollar, with such intent and knowledge. CHAP. SXV.] FORGERY AND COUNTERFEITING. 231 Stearns, late of, etc., on the twenty-fifth day of June in the year of our Lord , at Chaxlestown, in the county of Mid- dlesex, had in his custody and possession a certain piece of false and counterfeit coin, counterfeited in the likeness and similitude of the good and legal silver coin, current within said Commonwealth, by the laws and usages thereof, called a dollar, with intent then and there to pass the same as true, the said Stearns then and there well knowing the same to be false and counterfeit; against the peace of said Common- wealth, and contrary to the form of the statute in such case made and provided. 13. Foi' uttering and passing counterfeit coin. — Rev. Sts. of Mass. ch. 127, § 16. The jurors, etc., upon their oath present, that C. D. late of, etc., on the first day of June in the year of our Lord , at B. in the county of S., a certain piece of counterfeit coin, counterfeited in the likeness and similitude of the good and legal silver coin current within this State, to wit, the Com- monwealth aforesaid, by the laws and usages thereof, called a dollar, did utter and pass as true to one E. F., the said C. D. then and there ^ well knowing the same to be false and coun- terfeit; against the peace of said Commonwealth, and con- trary to the form of the statute in such case made and provided. 14. For having in possession .tools for coining, with intent to use the same. — Rev. Sts. of Mass. ch. 127, § 18.^ The jurors, etc., upon their oath present, that Ezekiel S. • An indictment which charged the defendant with uttering a counterfeit half crown to M. A. W., " knowing the same to be false and counterfeit," omitting the words " then and there," was held sufficient. Kegina v. Page, 2 Moody, C. C. 219. ^ Under this section a person is punishable for having in his possession an instrument adapted and designed to make one side only of a counterfeit coin. Commonwealth v. Kent, 6 Metcalf, 221. 232 FORGERY AND COONTBKFEITINa. [CHAP. XXV. Kent, late of, etc., on the first day of October in the year of our Lord , at B. in the county of S., did knowingly have in his possession a certain mould, pattern, die, puncheon, tool, and instrument, adapted and designed for coining and mak- ing one side of a counterfeit coin in the similitude of one side or half part of a certain sUver coin, called a half dollar, to wit, that side or half part thereof which represents a spread eagle, and has the words " United States of America," " half dol- lar ; " said coin, called a half dollar, being current by law and usage in this State and Commonwealth aforesaid, with intent then and there to employ the same mould, pattern, die, pun- cheon, tool, and instrument, and cause and permit the same to be used and employed in coining and making such false and counterfeit coin as aforesaid ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. CHAPTER XXVI. FORNICATION. Indictment for fornication. Rev. Sts. of Mass. ch. 130, § 5. The jurors, etc., upon their oath present, that C. D. late of B. in the county of S., laborer, on the first day of June in the year of our Lord , at B. aforesaid, in the county aforesaid, did commit the crime of fornication with one J. N., by then and there having carnal knowledge of the body of the said J. N., the said C. D. being then and there a single and unmarried man, and the said J. N. being then and there a single and unmarried woman,^ and the said C. D. and J. N. not being then and there lawfully married to each other; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. • See The State v. Gooch, 7 Blackford, 468. 20* CHAPTER XXVII. FRAUDULENT CONVEYANCE. It has been deemed advisable to reprint the following case, which is the only one founded on St. 13 Eliz. ch. 5, § 3, that has been reported, for the reason, that the Reports of Cox are not generally accessible to the profession in the United States. Eesina v. Smith and another.^ 13 Eliz. ch. 5, § 3 — Indictment — Fratidulent Conveyance. For any offence within 13 Eliz. ch. 5, § 3, the offender may be proceeded against by indictment. In such an indictment it is not necessary to set out the specific facts which constitute the fraud. The defendants were charged upon the following indict- ment under the third section of the 13 Eliz. ch. 5,^ for making a firaudulent conveyance. Surrey, ) The jurors for our Lady the Queen upon their oath to wit. ) present, that heretofore and before the committing ' 6 Cox, C. C. 31. ' It has been thought right to set out this indictment at some length, as it is the only form of the kind to be found in the books. It was drawn, after much consideration, by the Deputy Clerk of Assize on the Home Circuit, and is believed to be the only instance in which an attempt has been made to render this section the basis of a criminal prosecution, a fact somewhat remarkable, considering the extensive nature of its operation. The facts of the case are sufficiently shown by the indictment itself. CHAP. SXVn.] FRAUDULENT CONVEYANCE. 235 of the offence hereinafter next mentioned, to wit, on the first day of January in the year of our Lord 1850, and on divers other days and times heretofore, William Smith hereinafter mentioned had committed and caused to be committed near to and in the neighborhood of certain, to wit, twenty-two messuages, of and belonging to one T. C. M., to wit, at West Hill Grove, in the parish of Battersea, in the coimty of Sur- rey, divers nuisances and injurious acts, matters, and things, to the great damage and injury of the said T. C. M., to wit, to the amount of £300 and upwards. Wherefore the said T. C. M. heretofore, to wit, on the twenty-seventh day of January in the year of our Lord 1851, did commence a cer- tain action on the case against the said W. S., to vnt, in the court of our Lady the Queen, before the Queen herself, whereby to recover from the said W. S. the lawful damages sustained by the said T. C. M. for and in respect of the said nuisances and injurious acts, matters, and things aforesaid. That thereupon such proceedings were had and taken in the said action, that afterwards, to wit, at the assizes holden at Kingston-on-Thames, in and for the county of Surrey aforesaid, the said action came on to be tried, and then and' there, before the Right Honorable John Lord Campbell, and the Right Honorable Sir James Parke, Knight, then and there being her Majesty's justices assigned to take the assizes in and for the said county, was by a certain jury of the country in due form of law tried, upon which said trial the said jury did find and say upon their oaths, that the said W. S. was guilty of the grievances, nuisances, and injurious acts, mat- ters, and things aforesaid ; and assessed the damages of the said T. C. M. on occasion thereof, over and above his costs and charges by him about his said suit in that behalf ex- pended, to £300, and assessed those costs and charges at forty shillings. That during the pendency of the said suit, to wit, from the commencement of the said suit until the twenty-eighth day of March in the year of our Lord 1851, the said W. S. was seized in his demesne as of fee of and in certain lands, 236 FRAUDULENT CONVEYANCE. [CHAP. XXVII. hereditaments, and premises within the said county, to wit, at the parish of JBattersea, in the county of Surrey.* That the said W. S. late of the parish of Wandsworth, in the county aforesaid, laborer, and S. Everett, late of the same place, laborer, devising and wickedly intending and con- triving to injure, prejudice, and aggrieve the said T. C. M., and to defraud and deprive him of any damages and costs to be recovered in the said action whilst the same was so pend- ing as aforesaid, and immediately before the same came on for trial as aforesaid, and in anticipation of the said verdict, to wit, on the day and year last aforesaid, at the parish last aforesaid, in the county aforesaid, did devise, contrive, and prepare, and caused to be prepared, a certain feigned, covin- ous, and fraudulent alienation and conveyance, whereby the said W. S. expressed and declared to appoint and grant to the said S. E., the lands, tenements, and hereditaments afore- said, to hold to him the said S. E. and his heirs forever. That the said W. S. and S. E., wickedly and fraudulently devising, contriving, and intending as aforesaid, on the day and year aforesaid, at the parish aforesaid, in the county aforesaid, unlawfully, knowingly, wilfully, fraudulently, co- vinously, and injuriously did execute and become parties to the said alienation and conveyance, and then and there vnt- tingly and willingly did put in ure, avow, maintain, justify, ahd defend the same alienation and conveyance, as true, simple, and done and made bond fide and upon good consid- eration, and as a conveyance and alienation whereby the said W. S. had really and bond fide appointed and granted to the said S. E. the lands, tenements, and hereditaments aforesaid, to hold to him the said S. E. and his heirs forever. Whereas, in truth and in fact, the said alienation and conveyance was not nor is it bond fide. And whereas the truth was and is, that the same was so devised, contrived, and executed as aforesaid, of malice, fraud, collusion, and guile, and to the end, purpose, and intent to delay and hinder the said T. C. M. of and in his said just and lawful action and the said dam- ages by reason of the premises ; to the great let and hinder- CHAP. XXVn.] FRAUDULENT CONVEYANCE. 237 ance of the due course and execution of law and justice, to the great injury of the said T. C. M., against the form of the statute in such case made and provided, and against the peace of our said Lady the Queen, her crown, and dignity. Second Count, as in the first count to the asterisk, and con- tinued thus : That the said W. S. apd S. E., devising and wickedly intending and contriving to injure, prejudice, and aggrieve the said T. C. M., and to defraud and deprive him of any damages and costs to be recovered in the said action whilst the same was so pending as aforesaid, and immedi- ately before the same came on for trial as aforesaid, and in anticipation of the said verdict, to wit, on the day and year last aforesaid, at the parish of Wandsworth, in the county aforesaid, did devise, contrive, and prepare, and cause to be prepared, a fraudulent alienation and conveyance of the lands, tenements, and hereditaments aforesaid. That the said W. S. and S. E. wickedly and fraudulently devising, contriving, and intending as aforesaid, on the day and year aforesaid, at the parish last aforesaid, in the county aforesaid, unlawfully, knowingly, wilfully, fraudulently, covinously, and injuriously did execute and become parties to the said alienation and conveyance, and then and there wittingly and willingly did put in ure, avow, maintain, justify, and defend the same alien- ation and conveyance, as true, simple, and done and made bond fide and upon good consideration, and as a conveyance and alienation, whereby the said W. S. had really and bond fide aliened and conveyed to the said S. E. the lands, tene- ments, and hereditaments aforesaid, to hold to him the said S. E. and his heirs forever ; whereas, in truth, etc., as in first count. Third Count, as in the first count, to the asterisk: That dur- ing the pendency of the said action, and in anticipation of the said verdict, to wit, on the day and year last aforesaid, a cer- tain feigned, covinous, and fraudulent alienation and convey- ance had been devised, contrived, prepared, and executed by and between the said W. S. and the said S. E., whereby the said W. S. was expressed and declared to appoint and grant 238 FRAUDULENT CONVEYANCE. [CHAP. XXVII. and make over to the said S. E., the lands, tenements, and hereditaments aforesaid, to the said S. E. and his heirs forever. That the said W. S. and S. E. wickedly devising, contriving, and intending to injure, prejudice, and aggrieve him, and to deprive him of the said damages and costs in the said action so found as aforesaid, afterwards, to wit, on the twenty-sixth day of April in the year of our Lord 1851, at the parish of Wandsworth, in the county aforesaid, unlawfully, wittingly, and "willingly did put in ure, avow, maintain, justify, and de- fend the same alienation and conveyance, as true, simple, and done and made bond fide, and upon good consideration, and as a conveyance and alienation, whereby the said W. S. had really and bond fide appointed, granted, and made over to the said S. E., the lands, tenements, and hereditaments afore- said, to hold to him the said S. E. and his heirs forever; whereas, in truth and in fact, etc. Fowth Count, as in the first cotmt to the asterisk: That during the pending of the said action and in anticipation of the said verdict, to wit, on the day and year last aforesaid, a certain feigned, covinous, and fraudulent alienation and conveyance had been devised, contrived, prepared, and executed by and between the said W. S. and the said S. E., of the lands, tene- ments, and hereditaments aforesaid, to the said S. E. and his heirs forever. That the said W. S. and S. E., wickedly de- vising, contriving, and intending to injure, prejudice, and aggrieve the said T. C. M., and defraud and deprive him of the said damages and costs in the said action so found as aforesaid, afterwards, to wit, on the twenty-sixth day of April in the year of our Lord 1851, at the parish of Wandsworth aforesaid, in the county aforesaid, unlawfully, wittingly, and willingly did put in ure, avow, maintain, justify, and defend the same alienation and conveyance, as true, simple, and done and made bond fide, and upon good consideration, and as a conveyance and alienation whereby the said W. S. had really and bond fide granted, bargained, aliened, released, conveyed, and made over to the said S. E., the land?, tenements, and hereditaments aforesaid, to hold to him the said S. E. and his heirs forever, etc. CHAP. XXVn.] FBAUDTJLENT CONVEYANCE. 239 Fifth Count. — And the jurors aforesaid, upon their oath aforesaid, do further present, that the said W. S. and the said S. E., and divers evil-disposed persons wiclcedly intending to injure the said T. C. M., on the twenty-eighth day of March in the year of our Lord 1851, with force and arms, at the par- ish of Wandsworth, in the county aforesaid, did amongst themselves conspire, combine, confederate, and agree together, fraudulently, maliciously, and covinously to delay, hinder, and defraud the said T. C. M. of all such damages which, he might thereafter recover against the said W. S. in a certain action which was then pending in the court of our said Lady the Queen, before the Queen herself, wherein the said T. C. M. was plaintiff, and the said W. S. was defendant, to the evil example of all others in the like case offending, against the peace of our said Lady the Queen, her crown, and dignity. Sixth Count. — And the jurors aforesaid, upon their oath aforesaid, do further present, that the said W. S. and the said S. E., and divers evil-disposed persons wickedly intending to injure the said T. C. M., on the twenty-eighth day of March in the year of our Lord 1851, with force and arms, at the par- ish of Wandsworth, in the county aforesaid, did amongst themselves conspire, combine, confederate, and agree together, fraudulently, maliciously, and covinously to delay, hinder, and defraud the creditors of the said W. S., to the evil example of all others in the like case offending, against the peace of our Lady the Queen, her crown and dignity. Seventh Count. — And the jurors aforesaid, upon their oath aforesaid, do further present, that the said W. S. and the said S. E., and divers evil-disposed persons wickedly intend- ing to injure the said T. C. M., on the twenty-eighth day of March in the year of our Lord 1851, with force and arms, at the parish of Wandsworth, in the county aforesaid, did amongst themselves conspire, combine, confederate, and agree together, fraudulently, maliciously, and covinously to cheat and defraud the said T. C. M. of the fruits, and of all ben- efits and advantages of any execution or executions which he might thereafter lawfully issue or cause to be issued against 240 PEAUDULBNT CONVEYANCE. [CHAP. XXVH. the lands or tenements of the said W. S., to the evil example of all others in the like case offending, against the peace of our Lady the Queen, her crown and dignity. Eighth Count. — And the jurors aforesaid, upon their oath aforesaid, do further present, that the said W. S. and the said S. E., and divers evil-disposed persons, wickedly intend- ing to injure the said T. C. M. on the twenty-eighth day of March in the year of our Lord 1851, with force and arms, at the . parish of Wandsworth, in the county aforesaid, did amongst themselves conspire, combine, confederate, and agree together, fraudulently, maliciously, and covinously to cheat, injure, impoverish, prejudice, and defraud the said T. C. M., to the evil example of aU others in the like case offending, etc. Ninth Count. — And the jurors aforesaid, upon their oath aforesaid, do further present, that heretofore and before and at the time of the commission of the offence hereinafter next mentioned, to wit, on the twenty-eighth day of March in the year of our Lord 1851, a certain action on the case was pend- ing between the said W. S. and the said T. C. M., to wit, in her Majesty's Court of Queen's Bench, at Westminster, whereby the said T. C. M. sought to recover from the said W. S., damages for certain nuisances and injurious acts, rriat- ters, and things alleged to have been done and committed to the injury of the said T. C. M. That the said W. S. and S. E., and divers evil-disposed persons, whilst the said action was so pending as aforesaid, to wit, on the day and year aforesaid, at the parish last aforesaid, in the county aforesaid, unlawfully and wickedly did conspire, combine, confederate, and agree together, by divers unlawful, false, fraudulent, and indirect ways, means, devices, stratagems, and contrivances, to impede, hinder, prevent, and delay the said T. C. M. in the said action, and in the prosecution thereof, and in the recov- ery of damages for the nuisances and injurious acts, matters, and things aforesaid, to the great injury of the said T. C. M., against the form of the statute in such case made and pro- vided, and against the peace of our said Lady the Queen, her crown and dignity. CHAP. XX-VII.] FEATJDTJLENT CONVEYANCE. 241 Locke (for the defence) moved, after verdict, in arrest of judgment, on the ground that no proceeding by indictment was contemplated by the statute. The third section was in these words : " That all and every the parties to such feigned, covinous, or fraudulent feoffment, gift, grant, alienation, bar- gain, conveyance, bonds, suits, judgments, executions, and other things before expressed, and being privy and knowing of -the same or any of them, which at any time after the tenth day of June next coming, shall wittingly and willingly put in ure, avow, maintain, justify, or defend the same or any of them, as true, simple, and done, had, or made bond fide, and upon good consideration; or shall alien or assign any the lands, tenements, goods, leases, or other things before men- tioned, to him or them conveyed as is aforesaid, or any part thereof, shall incur the penalty or forfeiture of one year's value of the said lands, tenements, and hereditaments, leases, rents, commons, or other profits, of or out of the same, and the whole value of the said goods and chattels, and also of so much moneys as are or shall be contained in any such covin- ous and feigned bond ; the one moiety whereof to be to the Queen's Majesty, her heirs and successors, and the other moiety to the party or parties grieved by such feigned and fraudulent feoffment, gift, grant, alienation, bargain, convey- ance, bonds, suits, judgments, executions, leases, rents, com- mons, profits, charges, and other things aforesaid, to be recov- ered in any of the Queen's Courts of Record by action of debt, bOl, plaint, or information, wherein no essoign, protec- tion, or wager of law shall be admitted to the defendant or defendants, and also being thereof lawfully convicted, shall suffer imprisonment for one half year, without bail or main- prize." The offence, if any, of which the defendants have been guilty, is entirely created by this statute, and the section, after stating what the offence is, declares that for committing it, the offender shall incur a -penalty or forfeiture of one year's value, to be recovered by action. There is no mention what- ever of indictment, but there is a reference to a civil proceeding. The rule with respect to the mode of proceeding where new offences are created by statute is laid down in Russell on 21 ' 242 lEATJDTJLENT CONVEYANCE. [CHAP. XXVn. Crimes, p. 50, in the following terms : " Where an offence was punishable by a common law proceeding before the pass- ing of a statute which prescribes a particular remedy by a summary proceeding, then either method may be pursued, as the particular remedy is cumulative, and does not exclude the common law punishment. But where a statute creates a new offence by prohibiting and making unlawful what was lawful before, and appoints a particular remedy against such new offence, by a particular sanction and particular method of pro- ceeding, such method must be pursued and no other. The mention of other methods of proceeding impliedly excludes that by indictment, unless such methods are given by a sep- arate and substantive clause." There is another objection to this indictment, that it only states generally that this deed was fraudulent, not stating why or in what respect it was so. In Re Peck,^ it was held, that a count charging that the de- fendants unlawfully conspired to defraud divers persons who should bargain with them for the sale of merchandise, of great quantities of such merchandise without paying for the same, with intent to obtain to themselves money and other profit, was bad for not showing by what means the parties were to be defrauded. James (with whom was Hawkins for the prosecution) was not called upon. Maulb, J. — As to the first point, that the section of the act of Parliament does not speak of indictment, I think it clear that that proceeding is the proper one. The section mentions the offence, and then with reference to the punishment, de- clares that the " offender being thereof convicted, shall suffer imprisonment for one half year." That must mean "being convicted thereof," before some competent tribunal. If the statute had pointed out some other means, for instance, on conviction before a justice of the peace on a summary hear- ing, it would probably have restricted proceedings to that par- ticular course. It is true that the statute does mention a civil action, but that has nothing whatever to do with the half > 9 Adolphus & Ellis, 686. CPAP. XXVII.] FRAUDULENT CONVEYANCE. 243 year's imprisonment, but merely has reference to the recovery of damages by action, in any of the courts at Westminster. It surely could never be contended that the meaning of the statute is, that when such a court has given judgment for the damages, it should proceed to award to the defendant the punishment of imprisonment for half a year. The humanity of our law has established a clear distinction between civil and criminal proceedings, and this act of Parliament cannot be supposed to sanction so anomalous a course as that. It is obvious that, by some means or another, imprisonment is to be awarded after a proper conviction before a recognized tri- bunal. How then can that be done, otherwise than by indict- ment? Locke submitted, that, at aU events it was intended that no criminal proceeding should be resorted to, until after the recovery of damages in a civil action, the words " and also " near the end of the section, seemed to point to such a con- struction. Maulb, J. — I do not think so ; those words do not neces- sarily so restrict the procedure, and there seems to be no reason why it should be so restricted. Then as to the second point. The case cited is one where persons were said to have conspired to do a thing not necessarily unlawful in itself, such as, for instance, preventing a person from having execution of a judgment. There is nothing unlawful in that. It is precisely what the learned counsel, and those who in- struct him, are doing at this moment, seeking to prevent the operation of a judgment by arresting it. In the present case, the very words of the statute are adopted. What is charged therefore is necessarily unlawful, for the statute has made it so. Judgment for the Crown. CHAPTER XXVIII. HOMICIDE. It is usual when the denomination or degree of the homi- cide is at all doubtful, to charge the party in the indictment with murder ; because as the law presumes the fact of killing to be founded in malice,^ until the contrary appears, and as questions of homicide are frequently of a doubtful or com- plicated nature, it is therefore proper not to anticipate the effect of the circumstances which may appear to alleviate the crime. No material injury can thereby happen to the party, for the verdict and judgment will stiU be adapted to the nature of the offence, according as it appears upon the evidence ; and the party on the contrary has this advantage, that though the offence, if specially presented, would be one short of felony, of which he might be convicted, an acquittal of the mur- der is a perpetual bar to any other indictment for the same death.^ "With respect to the formal parts of the indictment, it is absolutely necessary to set forth particularly the manner of the death, and the means by which it was effected. An omis- sion in this respect is not aided by a general conclusion " that the defendant murdered," etc. But in the celebrated case of Commonwealth v. "Webster, it was held, that a count charg- ing that the defendant committed the crime, "in someway ' Commonwealth v. York, 9 Metcalf, 93. But see the able dissenting opinion of Mr. Justice "Wilde. » 1 Gabbett, Crim. Law, 502; 1 East, P. C. 340; 2 Hale, P. C. 158. CHAP. XXVni.] HOMICIDE. 245 and manner, and by some means, instruments, and weapons, to the jurors unknown," is sufficient, when the circumstances of the case will not admit of greater certainty in stating the means of death.^ A variance is in some cases fatal. Thus, • ' 5 Gushing, 295. In charging the jury in this case, Chief Justice Shaw said: — "This indictment contains four counts, which are four different modes in which the homicide is alleged to have' been committed. To a per- son unskilled and unpractised in legal proceedings, it may seem strange that several modes of death inconsistent with each other, should be stated in the same document. But it is often necessary ; and the reason for it when ex- plained, will be obvious. The indictment is but the charge or accusation made by the grand-jury, with as much certainty and precision as the evi- dence before them will warrant. They may be well satisfied that the homi- cide was committed, and yet the evidence before them may leave it some- what doubtful as to the mode of death ; but in order to meet the evidence as it may finally appear, they are very properly allowed to set out the mode in different counts ; and then if any one of them is proved, supposing it to be also legally formal, it is sufficient to support the indictment. " Take the instance of a murder at sea ; a man is struck down, lies some time on the deck insensible, and in that condition is thrown overboard. The evidence proves the certainty of a hoEoicide by the blow, or by the drowning, but leaves it uncertain by which. That would be a fit case for several counts, charging a death by a blow, and a death by drowning, and perhaps a third alleging a death by the joint result of both causes combined. It may per- haps be supposed, that, in the long and melancholy history of criminal juris- prudence, a precedent can be found for every possible mode in which a violent death can be caused ; and it is safer to follow precedents. It is true that these precedents are numerous and various ; but is not true, that amidst new discoveries in art and science, and the powers of nature, new modes of causing death may not continually occur. The powers of ether and chloro- form are of recent discovery. Suppose a person should be forcibly or clan- destinely held, and those agents applied to his mouth till insensibility and death ensue, though no such instance ever occurred before, the guilty agent could not escape. " Of course, I do not mean to intimate that these supposed agencies were used in the present case, but allude to them simply by way of illustration. But, if such or any similar new modes of occasioning death may have been adopted, they are clearly within the law. The rules and principles of the common law, just as when applied to steamboats and locomotives, though these have come into existence long since those principles were established, are broad and expansive enough to embrace all new cases as they arise. If therefore a homicide is committed by any mode of death, which, though 21* 246 HOMICIDE. [chap. XXVIII. if a person be indicted for one species of killing, as by poi- soning, he cannot be convicted by evidence of a totally differ- practised for the first time, falls -within these principles, and it is charged in the indictment with as much precision and certainty as the circumstances of the case will allow, it comes within the scope of the law and is punishable. " The principle is well stated in East's Pleas of the Crown, eh. 5, § 13 : — ' The manner of procuring . the death of another with malice is, generally- speaking, no otherwise material than as the degree of cruelty or delibera- tion, with which it is accompanied, may in conscience enhance the guilt of the perpetrator ; with this reservation however, that malice must be of cor- poral damage to the party; and, therefore, working upon the fancy of another, or treating him harshly or unkindly, by which he dies of fear or grief, is not such a killing as the law takes notice of; but he who wilfully and deliberately does any act, which apparently endangers another's life and thereby occasions his death, shall, unless he clearly prove the contrary, be adjudged to kill him of malice prepense.' This, the author proceeds to illus- trate by a number of remarkable and peculiar cases. " In looking at this indictment, we find that the first count, after the usual preamble, charges an assault and a mortal wound by stabbing with a knife ■ the second by a blow on the head with a hammer ; and the third, by striking, kicking, beating, and throwing on the ground. The fourth and last count, which is somewhat new, it will be necessary to examine more particularly. [Here the chief justice read the fourth count, as inserted post, page 271.] The court are all of opinion, after some consideration, that this is a good count in the indictment. " From the necessity of the case, we think it must be so, because cases may be imagined where the death is proved, and even where remains of the de- ceased are discovered and identified, and yet they may afford no certain ev- idence of the form in which the death was occasioned ; and then it is proper for the jury to say, that it is by means to them unknown. " We have already seen that a death occasioned by grief or terror, cannot in law be deemed murder. Murder must be committed by an act applied to or affecting the person, either directly, as by inflicting a wound or laying poison ; or indirectly, as by exposing the person to a deadly agency or influ- ence from which death ensues. Here the count charges an assault upon the deceased, (a technical term well understood in the law, implying force ap- plied to or directed towards the person of another,) in some way and man- ner, and by some, means, instruments, and weapons, to the jury unknown ; and that the defendant did thereby wilfuUy and maliciously deprive him' of life. " The rules of law require the grand-jury to state their charge with as much certainty as the circumstances of the case will permit ; and, if the cir- CHAP. XXVni.] HOMICIDE. 247 ent species of death, as by shooting, stoning, or strangling, but it is an immaterial variance, if, where the death is occa- sioned by any weapon, it should appear by the evidence that the party was killed by one different from that stated in the indictment. And so if the death be charged by one sort of poisoning, and it turn out to be another ; for if the means of death proved, agree in substance with that charged, it is in all cases sufficient.^ When the death is caused by any ex- ternal violence, coming under the nature of striking or bruis- ing, it should expressly appear that a stroke was given.^ But it cannot of course, be necessary in the case of poisoning, starving, or the like, where no actual violence is offered, or assault made. It appears that where the primary cause of the death is truly and substantially set forth, it is not neces- sary to state the intermediate process .by which that cause has produced the fatal effect.^ When the death is occasioned by any instrument held in the hand of the party killing the other, it is usual to state the hand in which it was held, whether the right or left hand ; but this is unnecessary. The value of the instrument is also gen- erally stated, or whether it be of no value ; but this state- cumstances will not permit a fuller and more precise statement of the mode in which the death is occasioned, this count conforms to the rules of law. " I am therefore instructed by the court to say, that if you are satisfied upon the evidence, that the defendant is guilty of the crime charged, thii form of indictment is sufficient to sustain a conviction." *' Kex V. Sharwin, 1 East, P. C. 341 ; Rex v. Mackally, 9 Reports, 65, 67, a; The State u. Smith, 22 Maine, 369; Rex v. Waters, 7 Carrington & Payne, 250 ; Rex v. Grounsell, 7 Carrington & Payne, 788 ; Rex v. Martin, 5 Carrington & Payne, 128; Rex v. Thompson, 1 Moody, C. C. 139; 1 Lewin, C. C. 194 ; Rex v. Kelly, 1 Moody, C. C. 113 ; 1 Lewin, G. C. 193 ; Rex V. Calkin, 5 Carrington & Payne, 121 ; Regina v. Warman, 2 Carring- ton & Kirwan, 195 ; 3 Greenleaf, Ev. § 140 ; 1 Gabbett, Crim. LaT^, 502. See Regina v. O'Brien, 1 Denison, C. C. 9 ; 1 Cox, C. C. 126 ; 2 Carrington 6 Kirwan, 115. = The State v. Owen, 1 Murphy, 452 ; Larkin's case, 1 Bulstrode, 124 ; 1 Gabbett, Crim. Law, 503. ' Rex V. Tye, Russell & Ryan, C. C. 345 ; Regina v. Mclntyre, 2 Cox, C. C. 379. 248 HOMICIDE. [chap. XXVIII. ment also, is not essential.^ The part of the body in which the deceased was struck or wounded, where the death is caused in that way, should always be particularly shown ; and therefore if it be said to be on the arm, hand, or side, without distinguishing whether it be right or left, or if it be only said to be about the breast, it will be insufficient.^ But where there is a sufficient certainty in these respects, the addi- tion of further uncertain description of the same wound will not vitiate it.^ The dimensions of the wound should be stated. But this rule does not apply where the death is caused by bruises. And if a person be shot, or run through the body, it seems sufficient to say, that the defendant gave the deceased a mor- tal wound, penetrating into and through his body ; specifying at the same time the part of the body where he was struck. If, however, upon the evidence, it should appear to be another kind of wound, in another place, it will be sufficient to main- tain the indictment. The reason assigned for requiring this minute particularity as to the manner and place of the wound or hurt, and its nature as above mentioned, is, that the court may see that the wound was such as to be a sufficient cause for the death.* ' See 2 Deacon, Crim. Law, 927 ; 1 East, P. C. 341 ; 1 Starkie, Crim. PI. (London ed. 1828), 92; 2 Hale, P. C. 185; 1 Gabbett, Crim. Law, 503; Rex V. Dale, 1 Moody, C. C. 5 ; Ward v. The State, 7 Blackford, 101. " 2 Hale, P. C. 185, 186 ; Long's case, 5 Coke Rep. 122, a. ' 1 East, P. C. 342; 1 Starkie, Crim. PI. (London ed. 1828), 92. See Dias V. The State, 7 Blackford, 20. * 1 Gabbett, Crim. Law, 504 ; 4 Coke Rep. 40, J ; 8 Chitty, Crim. Law, (Perkins' ed.) 734 ;. 2 Deacon, Crim. Law, 298 ; 1 East, P. C. 342 ; 2 Hale, P. C. 185, 186 ; The State v. Owen, 1 Murphy, 452, 454, 461, 464 ; The State V. Crank, 2 Bailey, 66. Li the case of an incised wound which caused death,' upon the necessity of the description, the authorities were uniform until the leading case of Rex v. Mosley, 1 Moody, C. C. 97 ; 1 Lewin, C. C. 189, (1825), which was twice discussed before all the judges, where it was decided that bruises, lacerations, and wounds, all contributing to the death, need not be described, — Littlehale and Holroyd, JJ., dissenting and hold- ing the indictment invalid. It will be observed, that the law has never re- quired the description of a bruise which did not make a technical wound. CHAP. XXVin.] HOMICIDE. 249 In all cases the death by the means stated must be clearly and positively alleged ; for it cannot be taken to be so by The reasons given for the decision in Rex v. Mosley, were, that it did not seem material to prove the description ; and Lawrence, J., had instructed the clerk of assize of the Oxford circuit to omit a description of the wounds where there were more wounds than one. The next case in England, is Rex V. Turner, 1 Lewin, C. C. 177, (1830,) which was the case of a bruise, and although decided on the authority of Rex v. Mosley, the hurt was de- scribed in accordance with the earlier decisions as to the necessity of a de- scription of a bruise. The next case is Rex v. Tomlinson, 6 Carrington & Payne, 370, (1834,) where Patteson, J., ddubted, but Parke, B., decided that the depth of a bruised wound made with a stone need not to be described, from his memory of Rex v. Mosley. Because, he said, that as common sense did not require the length, breadth, and depth of the wounds to be stated, it was not necessary that they should be stated, although all the text writers have assigned as a reason, that the wound is described, so that the court may see on the face of the record that such a hurt would be an ade- quate cause of death. It is to be remarked, that all the precedents in Eng- land, in a case of a simple incised wound, still give a description of the wound. These last two cases were decisions at nisi prius. In America, the earliest reported decisions, are the cases of The State v. Owen, 1 Murphy, 452, (1810,) and The State v. Moses, 2 Devereaux, 462, (1830,) in North Carolina. In the last of which, even the dissenting judges admitted the law to be as here contended, so far as the description of an in- cised wound is concerned. It is digested in Cox's Digest of Reports of Decisions in the United States Courts, p. 359, referring to United States v. Mauuier, North Carolina Cases, p. 79, that the contrary has been decided. And it is to be observed, that afterwards, decisions in North Carolina over- ruling the decision in Maunier's case are found, in which no reference is made or notice taken of any such decision. The next case is The State v. Crank, 2 Bailey, 66, (1831,) which decides only that a bruise need not be described, while the reasoning of the court would seem to admit the doctrine here asserted. The next case is Stone v. The State, 2 Scammon, 326, 338, (1840,) when it is only decided, that such description is not bad on error, under the statute provisions of Illinois. The next case is Stone v. The State, J! Blackford, 20, (1843,) where the depth of the wound is not described. But the judgment was reversed on other points, and that is not the point de- cided by the court. In a very recent case in Virginia, it has been held, that a description of the wound is not necessary. Conunonwealth v. Lazier, 10 Grattan, 708, (1853). In this ceise, Moncure, J., said, " At common law, the omission to set forth the length and depth of the wound would in no case be fatal." In Massachusetts, in the case of Commonwealth v. Chapman, The Monthly Law Reporter, Vol. 7, n. s. p. 155, (1854,) where the indictment 250 HOMICIDE. [chap. XXVIII. implication. The allegation that the deceased received the hurt, etc., which is laid as the cause of his death, will not be sufficient; and, therefore, if the death be caused by any stroke, the indictment should aver that the prisoner thereby gave the deceased a mortal wound or bruise, whereof he died ; or, if by poison, then, after stating the particular mode of poisoning, it should be distinctly alleged that he died of the poison so taken, and the sickness thereby occasioned.^ The respective times of the death, and of the wound or other cause which produces it, are necessary to be stated, in order that it may appear that the deceased died within a year and a day from the stroke, etc. And this may be done by stating that he died instantly of the wound, or that he lan- guished of the same till the day mentioned when he died of the said mortal wound. But a mistake in these dates is not material, if it appear by the evidence that the death happened within the year and a day from the stroke or poison, etc., without which the law does not attribute the death to such cause.2 But it is to be observed, that though the wound be not in itself so mortal, but that with good care the party might be cured, yet, if he dies within the year and a day, it is homicide, the degree of it, however, depending upon the circumstances of the case ; and though the application of in- efficacious salves or medicines, or the neglect of the wound, should produce a gangrene or fever, which is the immedi- ate cause of the death, yet the wound being the cause of the gangrene or fever, and therefore the mediate cause of death, the party striking shall answer for it.* And the same rule holds charged that the defendant " did strike and bruise " the deceased, it was held, that it is not necessary to describe either the length, breadth, or depth of the wound. But the court were of opinion that in the case of a simple incised wound, the authorities would support the position that a description is itecessary. 1 1 Gabbett, Crim. Law, .504 ; 1 East, P. C. 343 ; 1 Starkie, Crim. PI. (London ed. 1828), 93; Rext). Lad, 1 Leach, C. C. (4th London ed.), 96. " 1 East, P. C. 314; 1 Gabbett, Crim. Law, 505. ' 1 Gabbett, Crim. Law, 505 ; 1 East, P. C. 344 ; ReVs case, Kelyng, 26 ; 1 Hale, P. C. 428; 3 Greenleaf, Ev. § 139; McAllister v. The State, 17 Alabama, 434; Regina v. Holland, 2 Moody & Robinson, 351. CHAP. XXTIII.] HOMICIDE. 251 if the wound or hurt provokes or irritates a preexistent dis- ease BO as to end the life of the party before the time that, by the course of nature, it would probably expire. And this hastening of his death is homicide or murder, as the case may happen to be ; because the party does not die simply from the visitation of God, or a mere natural death.^ If, however, it can clearly and certainly appear, that the medicine, and not the wound, was the cause of the death, though administered in consequence of the wound, then it seems that it is not homicide.2 It is also necessary in indictments for murder to allege the place of the wound, etc., and of the death, in order that it may appear that the offence is properly triable in the county or before the court where the indictment is preferred ; but though the wound should, upon the evidence, appear to be at another place in the same county, it will be sufl&cient to maintain the indictment.^ The christian and surname of the party killed must be stated, if known.* The name so stated must either be the real name of the party injured, or that by which he is usually known ; as, for instance, upon an indictment for the murder of a bastard child, it cannot be described by the name of its mother, unless that name have been gained by reputation.^ A bastard is quasi nullius JUius, and can have no name of repu- tation as soon as he is born. Where, therefore, upon an in- dictment for the murder of a female bastard child, whose name was to the jurors unknown, it appeared that the child had not been baptized, but that the mother, the prisoner, had said she should like to have it called Mary Ann, and little > 1 Gabbett, Crim. Law, 505 ; 1 East, P. C. 344. 'Ibid. ' 1 Gabbett, Crim. Law, 506; 2 Hale, P. C. 180; 2 Hawkins, P. C. ch. 25, § 85 ; 3 Greenleaf, Ev. § 143 ; Kiggs v. The State, 26 Mississippi, 51. * Kex t). Norton, Eussell & Ryan, C. C. 510 ; Rex v. Berriman, 5 Carring- ton & Payne, 601 ; Anonymous, 6 Carrington & Payne, 40B ; Rex v. Wil- liams, 7 Carrington & Payne, 298. ' Rex V. Clark, Russell & Ryan, C. C. 358 ; Rex v. Ellen Waters, 1 Moody, C. C. 457; Reginaw. Stroud, 2 Moody, C. C. 270; 1 Carrington & Kirwan, 187 ; Regina v. Evans, 8 Carrington & Payne, 765. 252 HOMICIDE. [chap, xxvin. Mary, it was held, that the child had not acquired a name by reputation.! ^ child cannot be described as " a certain male infant of tender age, to wit, of the age of, etc., and not bap- tized." The indictment must either state its name, or if it have no name either by baptism or reputation,^ state it to be to the jurors unknown.^ But the absence of a name was held to be sufficiently accounted for by the child being described as " then lately before born of the body of A. B. ; " * or " a certain infant female child born of the body of A. B., and of tender years, to wit, of the age of two days, and not named." ^ Where the defendant was indicted for killing a woman whose name was to the jurors unknown, and who he sometimes said was his wife, and sometimes not, and there was no evidence of any name by which she was known, it was held, that if she was not his wife, and if her name could not be ascertained by any reasonable diligence, the descrip- tion was correct.® No addition is requisite.^ It is usual to allege that the party killed was in the peace of the State ; but this allegation is unnecessary.^ The indictment must not only state the act by which the death is occasioned to have been done feloniously, but it must also be specially averred to be done of " malice afore- thought ; " which is the great characteristic of the crime of murder. It is also equally necessary to state, that the defend- ant " murdered " the deceased ; for this is a term of art, and 1 Kex V. Smith, 1 Moody, C. C. 402. ' See Kegina v. Stroud, 2 Moody, C. C. 270 ; 1 Carrington & Kirwan, 187. ' Eegina v. Biss, 2 Moody, C. C. 93 ; 8 Carrington & Payne, 773; Begina V. Hicks, 2 Moody & Eobinson, 302. * Regina v. Hogg, 2 Moody & Eobinson, 380. See Eegina v. Willis, 1 Den- ison, C. C.80; 1 Carrington & Kirwan, 722 ; 1 Cox,C. C. 136. 'Eegina v. Sarah Waters, 1 Denison, C. C. 356 ; 1 Temple & Mew, C. C. 57, and Eeporters' notes. " Eegina v. Campbell, 1 Carrington & Kirwan, 82. ' Commonwealth v Varney, The Monthly Law Eeporter, vol. 6, N. s. p. 586. • ' Commonwealth v. Murphy, The Monthly Law Eeporter, vol. 6, n. s. p. 461. CHAP. XXTin.] HOMICIDE. 253 cannot be otherwise expressed. Therefore, if the indictment merely allege, that the mortal stroke was given feloniously, or that the defendant murdered the deceased, without adding of " malice aforethought ; " or if it only charge that he killed or slew, without averring that he " murdered " the deceased, the prisoner can only be convicted of manslaughter.^ "Where, however, an indictment charges, that A. " feloniously and of his malice aforethought, assaulted B., and with a sword, etc., then and there struck him," etc., the first allegation of " feloni- ously and of his malice aforethought," applies to the stroke as well as to the assault. So, where an indictment charged that the prisoner " wilfully, feloniously, and of her malice afore- thought," did mix poison, to wit, white arsenic with flour and milk, with intent that the same should be afterwards baked and eaten by the deceased, and the same, with the intent aforesaid, did then and there deliver to the deceased, this alle- gation was held sufficient, without adding the words " feloni- ously and of her malice aforethought " again to the allegation of the deKvery of the poison ; for those words, being coupled with the word "and," and the words "then and there," were considered as running through the subsequent allegation.^ In Massachusetts, it has been very recently held, that it is not necessary to aver that the assault was made wilfuUy and with maKce aforethought.^ The indictment is concluded by averring, as a consequence from the antecedent matter, in words containing a positive allegation, as follows : " and so the said A. the said B.,* in manner and by the means aforesaid, feloniously, wilfolly, and » 2 Deacon, Crim. Law, 930 ; 1 Starkie, Crim. PI. (London ed. 1828,) 58 ; Dias V. The State, 7 Blackford, 20. ' Kex V. Nicholson, 1 East, P. C. 346. But see contra, Respublica u. Honeyman, 2 Dallas, 288 ; Commonwealth ». Gibson, 2 Virginia Cases, 70. See also Maile v. The Commonwealth, 9 Leigh, 661. ' Commonwealth v. Chapman, The Monthly Law Reporter, vol. 7, n. S. p. 155, (1854). See Lester v. The State, 9 Missouri, 666. * If the name of the deceased be omitted, the indictment is insufficient. Dias V. The State, 7 Blackford, 20. 22 254 HOMICIDE. [chap, xxvin, of his malice aforethought, did (poison,) kill, and murder." ^ In which conclusion, if the day be specially alleged, where the stroke is at one time or place, and the death at another, the day should be that on which the party died, and not that on which he was struck ; for it is not murder until the party die.^ 1. For mcmslaugkter against the engineer of a steamboat, for so negligently managing the engine that the boiler burst, amd thereby caused the death of a passenger? The jurors, etc., upon their oath present, that Henry Rob- ert Heasman, late of the parish of St. Martin in the Fields, in the county of Middlesex, and within the jurisdiction of the said court, engineer, on the twenty-seventh day of Au- gust, in the year of our Lord , at the parish aforesaid, in the county aforesaid, and within the jurisdiction of the said court, was employed as an engineer in. and on board a certain steamboat called the Cricket, then and there floating on the waters of a certain river called the Thames, there situate, in and on board which said steamboat there then were divers, to wit, one hundred of her Majesty's liege subjects as the said Henry ' In Rex V. Nicholas, 7 Carrington & Payne, 538, 541, Littledale, J., said, " The common forms in murder and manslaughter do not allege time and place at the end of the indictment. It is a mere conclusion, and I think it is more correct to leave them out." In Starkie's Criminal Pleading, (vol. 1, p. 65,) it is said, "In an indictment, though it is unnecessary to aver a mere conclusion of law with either time or place, yet if it be averred ■with time and place, and improperly, the indictment 'will be defective. If, therefore, the stroke be laid at A., and the death at B., the indictment averring in conclusion, that the defendant feloniously murdered the said C. D. at A., is vicious, for the murder was completed at B. by the death of the party there.'' ' 1 East, P. C. 347 ; 2 Deacon, Crim. Law, 931 ; 1 Gabbett, Crim. Law, 507. ' 2 Cox, C. C. Appendix, p. C. In an indictment under the act of Con- gress, 1838, 7th July, § 12, providing that any act of "misconduct, negU- gence, or inattention," on the part of persons employed in steamboat naviga- tion, producing death as a result, shall be deemed manslaughter, it is unnec- essary to aver or prove malicious intent in the persons charged. United States V. Warner, 4 McLean, 463. CHAP, xxvin.] HOMicroE. 255 Robert Heasman then and there -well knew ; and that the said Henry Robert Heasman, as such engineer as aforesaid, then and there had and took upon himself the care, charge, management, and control of a certain steam-engine and boiler, being then and there in and attached to the said steam- boat, for the purpose of propelling the same, and in which said boiler there were then and there divers large quantities of boiling water, whereby to generate steam, whereby to work the said steam-engine as the said Henry Robert Heasman then and there well knew ; and that it then and there became and was the duty of the said Henry Robert Heasman, as such engineer as aforesaid, to regulate the quantity and amount of steam to be generated and retained within the said boiler, during the time the said boiler was used and employed for the purpose aforesaid, according to the strength and within the capacity of the saiH boiler. And the jurors aforesaid, upon their oath aforesaid, do say that the said Henry Robert Heasman, on the day aforesaid, in the year aforesaid, at the parish aforesaid, in the county aforesaid, and within the jurisdiction of the said court, so having the care, charge, management, and control of the said boiler as afore- said, did wilfully and feloniously neglect and omit to regulate the quantity and amount of steam then and there being gen- erated and retained in the said boiler, according to the strength and within the capacity of the said boUer, and did then and there wilfully, negligently, and feloniously permit and suffer a much larger amount of steam, to wit, ten thou- sand cubic feet of steam, to be generated and retained within the said boiler, than the said boiler was strong enough to con- tain and bear, and capable of containing and bearing, and that the said Henry Robert Heasman did then and there by his said negligence in so permitting and suffering the said gener- ation and retention of steam within the said boiler more than the said boiler was strong enough to contain and bear, and capable of containing and bearing as aforesaid, unlawfully and feloniously cause the said boiler to burst, and did then and there by means of the said bursting of the said boUer, with force and arms unlawfully and feloniously make an as- 256 ■ HOMICIDE. [chap. xxnn. sault upon one Thomas Shed, the younger, on board the said steamboat then and there lawfully being, and the said Thomas Shed down upon and against the planksj iron, and timbers of the said steamboat, called the Cricket, then and there unlawfully and feloniously did cast and throw, thereby then and there giving to the said Thomas Shed one mortal fracture of his skull, of which said mortal fracture of his skull the said Thomas Shed then and there died. And so the jurors aforesaid, upon their oath aforesaid, do say that the said Henry Robert Heasman, on the day aforesaid, in the year aforesaid, at the parish aforesaid, in the county aforesaid, and within the jurisdiction of the said court, the said Thomas Shed, in manner aforesaid, unlawfully and feloniously did kill and slay, against the peace, etc. Second Count. — And the jurors aforesaid, upon their oath aforesaid, do further present, that the said Henry Robert Heasman, afterwards, to wit, on the day aforesaid, and in the year aforesaid, at the parish aforesaid, in the county aforesaid, and within the jurisdiction of. the said court, being then and there the engineer in and on board the said steamboat called the Cricket, then and there floating on the waters of the said river called the Thames, there situ- ate, and on board which said steamboat there were then and there divers large numbers of her Majesty's liege subjects, as the said Henry Robert Heasman then and there well knew, had and took upon himself, as such engineer as aforesaid, the care, charge, management, and control of a certain steam- engine and boiler, then and there being in and on board the said steamboat, and in which the said last-mentioned boiler, there were then and there divers large quantities of boiling water, for the purpose of generating steam, and thereby working the said engine, and that it then and there became and was the duty of the said Henry Robert Heasman then and there so to regulate, manage, and control the said last- mentioned boiler as that all the surplus quantity of steam generated and made within the said last-mentioned boiler, beyond such quantity of steam as the said last-mentioned boiler was capable of containing, bearing, and retaining, CHAP. XXVIII.J HOMICIDE. 257 might, from time to time, and at all times, so often as might be necessary, escape from and out of the said last-mentioned boiler, through and by means of certain, to wit, four, safety valves, which were then and there made and constructed in the said last-mentioned boiler, for such purpose as the said Henry Robert Heasman then and there well knew. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said Henry Robert Heasman, on the day and year last aforesaid, at the parish aforesaid, in the county aforesaid, and within the jurisdiction of the said court, so then and there having the care, charge, management, and control of the said last-mentioned boiler, as last aforesaid, did then and there wilfully, and feloniously neglect to regulate the quantity and amount of steam then and there generated and contained within the said last-mentioned boiler as last aforesaid, and did then and there negligently, wilfully, and feloniously per- mit and suffer a larger quantity and amount of steam to be accumulated, confined, and retained within the said last-men- tioned boiler than the said last-mentioned boiler was capable of containing and bearing, whereby it then and there became and was necessary that the said last-mentioned steam should escape from and out of the said last-mentioned boiler, through and by means of the said safety valves or one of them. And the jurors aforesaid, upon their oath aforesaid, do further pre- sent, that the said Henry Robert Heasman, well knowing the premises, wilfully and feloniously did neglect so to regulate, manage, and control the said last-mentioned boiler, as that the said last-mentioned steam could escape from and out of the said last-mentioned boiler, through and by means of the said four safety valves, or one of them, and did then and there, by means of his said negligence, as in this count aforesEiid, unlawfully and feloniously cause the said last-mentioned boiler to burst, and did then and there by means of the said last-mentioned bursting of the said boiler, with force and arms, unlawfully and feloniously make an assault upon the said Thomas Shed, and the said Thomas Shed, down upon and against the planks, iron, and timbers of the said steamboat, called the Cricket, then and 22* 258 HOMICIDE. [chap, xxvin. there unlawfully and feloniously did cast and throw, thereby then and there giving to the said Thomas Shed one mortal fracture of his skull, of which said last-mentioned mortal fracture the said Thomas Shed then and there died. And so the jurors aforesaid, upon their oath aforesaid, do say that the said Henry Robert Heasman, on the day and year last aforesaid, at the parish aforesaid, in the county aforesaid, and within the jurisdiction of the said court, the said Thomas Shed, in manner last aforesaid, unlawfully and feloniously did kill and slay, against the peace, etc. Third Count. — And the jurors aforesaid, upon their oath aforesaid, do further present, that the said Henry Robert Heasman, afterwards, to wit, on the day aforesaid, and in the year aforesaid, at the parish aforesaid, in the county aforesaid, and within the jurisdiction of the said court, being then and there the engineer in and on board the said steamboat called the Cricket, then and there floating on the waters of a certain river called the Thames, there situate, and in and on board which said steamboat there were then and there divers large numbers of her Majesty's liege subjects, as the said Henry Robert Heasman then and there well knew, was intrusted with, and then and there took upon himself, as such engineer as aforesaid, the care, charge, management, and control of a certain steam-engine and boiler, then and there being in and on board the said steamboat, and in which said last-mentioned boiler there were then and there divers large quantities of water, by the boiling of which water divers large quantities of steam were then and there continually ascending and aris- ing, and being generated and made within the ^aid last-men- tioned boiler, and that the said last-mentioned boiler was then and there made and constructed with, and then and there had certain, to wit, four safety valves and openings, through which all such steam within the said last-mentioned boiler, so being generated and made as last aforesaid, beyond such steam as the said last-mentioned boiler was capable of holding and containing, and was strong enough to hold and contain, might and could and would, from time to time, es- cape and find vent from and out of the said last-mentioned CHAP. XXVin.] HOMICIDK. 259 boiler, without hurt or damage to any of her Majesty's liege subjects ; all which premises the said Henry Robert Heasman then and there well knew. And the jurors aforesaid, upon their oath aforesaid, do further say, that, on the day and year last aforesaid, at the parish aforesaid, in the county aforesaid, and within the jurisdiction of the said court, and whilst divers large quantities of steam were being generated and made in the said last-mentioned boiler, as in this count afore- said, the said Henry Robert Heasman wilfully and feloniously did close, tie down, fasten, and keep closed, tied down, and fastened, the said four safety valves of the said last-mentioned boiler, and by such closing, tying down, and fastening, and keeping closed, tied down, and fastened the said safety valves, did then and there hinder and prevent the SEiid steam, so being generated and made in the said last-mentioned boiler as last aforesaid, from then and there escaping and finding vent fi:om and out of the said last-mentioned boiler, as it might and ought and otherwise would then and there have done, and thereby and by means of the premises in this count aforesaid, the said Henry Robert Heasman did then and there unlawfully and feloniously cause the said last-mentioned boiler to burst, and did then and there, and by the means last aforesaid, with force and arms, unlawfully and feloniously make an assault upon the said Thomas Shed, and the said Thomas Shed, down upon and against the planks, iron, and timbers of the said steamboat, called the Cricket, then and there unlawfully and feloniously did cast and throw, thereby then and there giving to the said Thomas Shed one mortal fracture of his skull, of which said last-mentioned mortal fracture the said Thomas Shed then and there died. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said Henry Robert Heasman, on the day and year last aforesaid, at the parish aforesaid, in the county aforesaid, and within the jurisdiction of the said court, the said Thomas Shed, in manner last aforesaid, unlawfully and feloniously did kill and slay, against the peace, etc. Fourth Count. — And the jurors aforesaid, upon their oath aforesaid, do further present, that the said Henry Robert 260 HOMICIDE. [chap, xxvhi. Heasman, afterwards, to wit, on the day aforesaid, and in the year aforesaid, at the parish aforesaid, in the county aforesaid^ and within the jurisdiction of the said court, being such en- gineer as aforesaid, was intrusted with, and then and there took upon himself, the care, management, and control of a certain steam-engine and boiler, then and there being in the said steamboat called the Cricket, in which said last-men- tioned boiler there was then and there a large quantity, to wit, ten thousand cubic feet of steam, and it then and there became and was the duty of the said Henry Robert Heas- man to provide for and secure the escape of a certain quan- tity, to wit, five thousand cubic feet of the said steam, from and out of the said last-mentioned boiler, in order to prevent the bursting of the said last-mentioned boiler from the press- ure of the said steam. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said Henry Robert Heasman, well knowing the premises, but wilfully and felo- niously neglecting his duty in that behalf, did not then and there provide for or secure the escape of the said part of the said steam from and out of the said last-mentioned boiler, but, on the contrary thereof, wilfully, negligently, and feloni- ously did permit and suffer the said quantity, to wit, ten thousand cubic feet of steam to be and remain in the said last-mentioned boiler, by means of the retention of which said steam in the said last-mentioned boiler, and the press- ure thereof, the said last-mentioned boiler did then and there burst and explode, and, by force of the said bursting and explosion, the said Thomas Shed, then and there law- fully being on board of the said steamboat, was then and there thrown and cast down upon and against the planks, iron, and timbers of the said steamboat, by which said throwing and casting of the said Thomas Shed down upon and against the planks, iron, and timbers of the said steamboat, in manner last aforesaid, the said Henry Rob- ert Heasman, did then and there wilfully and feloniously give to the said Thomas Shed one mortal fracture of his skull, of which said last-mentioned mortal fracture the said Thomas Shed then and there died. And so the jurors aforesaid, upon CHAP.XXVin.] HOMICIDE. 261 their oath aforesaid, do say, that the said Henry Robert Heas- man, on the day and year last aforesaid, at the parish afore- said, in the county aforesaid, and within the jurisdiction of the said court, the said Thomas Shed, in manner last afore- said, unlawfully and feloniously did kill and slay ; against the peace, etc. Fifth Count. — And the jurors aforesaid, upon their oath aforesaid, do further present, that the said Henry Robert Heasman, afterwards, to wit, on the day aforesaid, in the year aforesaid, at the parish aforesaid, in the county aforesaid, and within the jurisdiction of the said court, did wilfully and feloniously close, tie down, and fasten, and did keep closed, tied down, and fastened, certain, to wit, four, safety-valves of a certain boQer, in which said last-mentioned boiler divers large quantities, to wit, ten thousand cubic feet, of steam, beyond such quantity of steam as the said last-mentioned boiler was capable of bearing, were then and there accumu- lated, confined, and retained, and that thereby, and by means of the premises in this count mentioned, the said Henry Rob- ert Heasman, did then and there unlawfully and feloniously cause the said last-mentioned boiler to bmrst, and did then and there, and by the means last aforesaid, with force and arms, unlawfully and feloniously make an assault upon the said Thomas Shed, and the said Thomas Shed, down upon and against the planks, iron, and timbers of a certain steam- boat called the Cricket, . then and there being, then and there unlawfully and feloniously did cast and throw, thereby then and there giving to the said Thomas Shed one mortal fracture of his skull, of which said last-mentioned mortal fracture the said Thomas Shed then and there died. And so the jurors aforesaid, upon their oath aforesaid, do say that the said Henry Robert Heasman, on the day and year last afore- said, at the parish aforesaid, in the county aforesaid, and within the jurisdiction of the said court, the said Thomas Shed in manner last aforesaid, unlawfully and feloniously did kUl and slay ; against the peace, etc. Sixth Count. — And the jurors aforesaid, upon their oath aforesaid, do further present, that the said Henry Robert 262 HOMICIDE. [chap, xxvnr. Heasman, afterwards, to wit, on the day aforesaid, in the year aforesaid, at the parish aforesaid, in the county afore- said, and within the jurisdiction of the said court, did wil- fully and feloniously, by causing to be made and generated within a certain boiler, and by keeping and retaining within the said last-mentioned boiler divers large quantities, to wit, ten thousand cubic feet, of steam more than the said last-mentioned boiler was strong enough and able to con- tain and bear, cause the said last-mentioned boiler to burst, and did then and there, and by the means last afore- said, with force and arms, unlawfully and feloniously make an assault upon the said Thomas Shed, and the said Thomas Shed, down upon and against the planks, iron, and timbers of a certain steamboat called the Cricket, then and there being, then and there unlawfully and feloniously did cast and throw, thereby then and there giving to the said Thomas Shed one mortal fracture of his skull, of which said last-mentioned mortal fracture the said Thomas Shed then and there died. And so the jurors aforesaid, upon their oath aforesaid, do say that the said Henry Robert Heasman on the day and year last aforesaid, at the parish aforesaid, in the county aforesaid, and within the jurisdiction of the said court, the said Thomas Shed, in manner last aforesaid, unlawfully and feloniously did kill and slay ; against the peace, etc. Seventh Count. — And the jurors aforesaid, upon their oath aforesaid, do further present, that the said Henry Robert Heas- man, afterwards, to wit, on the day aforesaid, in the year aforesaid, at the parish aforesaid, in the county aforesaid, and within the jurisdiction of the said court, with force and arms, in and upon one Thomas Shed, in and on board of a certain steamboat called the Cricket, then and there lawfully being, did make an assault, and a certain boiler, then fixed in the said steamboat, and then and there containing and having within it divers large quantities, to wit, ten thousand cubic feet of steam, and ten thousand cubic feet of vapor, wil- fully and feloniously did cause to burst at, upon, and against the said Thomas Shed, and thereby and by means of the force and violence of the said steam and vapor, rushing CHAP. XXVni.] HOMICIDE. 263 and escaping from the said last-mentioned boiler, and by- means of the broken parts of the boUer, so then and there burst as last aforesaid, the said Thomas Shed then and there unlawfully and feloniously did cast and throw down upon and against the planks, iron, and timbers of the said steam- boat called the Cricket, then and there being, thereby then and there giving to the said Thomas Shed one mortal frac- ture of his skull of which said last-mentioned mortal frac- ture the said Thomas Shed then and there died. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said Henry Robert Heasman, on the day and year last aforesaid, at the parish aforesaid, in the county aforesaid, and within the jurisdiction of the said court, the said Thomas Shed, in manner last aforesaid, unlawfully and feloniously did kill and slay ; against the peace, etc. 2. For manslaughter, by neglect to give cu proper signal to de- note the obstruction of a line of railway, whereby a col- lision took place and a passenger was killed.^ The jurors, etc., upon their oath present, that before and at the time of committing the felony hereinafter mentioned, George Pargeter, late of the parish of Shrivenham, in the ' 1st. This indictment charges, that the prisoner's duty was to attend to the proper working of the signals, according to the rules. Held, that it was not necessary to set out the rules. 2d. It appeared that the prisoner had many other duties, besides attending to the signal posts, some of them being incompatible with his duty there. Held, that it was not necessary to set forth all the other duties, and then to negative that the prisoner was em- ployed at the time in the discharge of either of such other duties. 3d. Held, that an averment that it was prisoner's duty to signal an obstruction, and there was an obstruction which prisoner neglected to signal, was a suffi- cient description of the oflFence, and that it was not necessary to aver that the prisoner's duty was, if there was an obstruction and he saw it, to •signal it, and that there was an obstruction which he might have seen, but neglected to see. 4th. That it is sufficient to aver the duty to be to make "a proper signal," without further describing it. 5th. That a count which charged hoth a neglect to give the flght signal, and the giving of the wrong »gnal, is not bad for duplicity. 6th. That it is sufficient to charge " that the 264 HOMICIDE. [chap. XXVIII. county of Berks, laborer, on the eleventh day of May in the year of our Lord , at the parish aforesaid, in the county of Berks aforesaid, was a servant and policeman in the ser- vice and employ of a certain company, to wit, the Great "Western Railway Company, in and upon a certain railway, to wit, the Great Western Railway. And the jurors, afore- said, upon their oath aforesaid, do further present, that before and at the time of committing the said felony, certain signal posts had been and were erected by the said company near to certain stations upon the said railway, for the purpose of making signals for the regulation, guidance, and warning of the drivers of locomotive engines attached to and drawing the trains of carriages travelling upon and along the said rail- way, which said signals were sufficient and proper for the purposes aforesaid, and were, at the time of the committing of the said felony, in constant use and in fuU force and effect, and well known to the said G. P., to wit, at the parish afore- said, in the county of Berks aforesaid. And the jurors afore- said, upon their oath aforesaid, do further present, that one of such signals, in such use and so used as aforesaid, and known j;o the said G. P. as aforesaid, when made, denoted, and was intended to denote and give warning and notice to the said drivers, that the line of the said railway, at the station near unto which the said signal was made, was then free from ob- struction ; and that the driver of any engine attSched to and drawing any train of carriages then approaching the said sta- tion, might safely pass through the same, with the train, with- out stopping, and which said signal was then and there called and known by the name of the " all right " signal, and that one other of such signals so used as aforesaid, and known to the said G. P. as aforesaid, when made, denoted, and was intended to denote and give warning and notice to the said drivers, that the line of the said railway near to which the said last-mentioned signal was made, was then obstructed ; prisoner did neglect and omit to alter the said signal," without stating more particularly what was the specific alterafion which he so neglected to make. Regina v. Pargeter,3 Cox, C. C. 191. CHAP. XXVni.] HOMICIDE. 265 and that the driver of any engine attached to and drawing any train of carriages then approaching the said station could not safely pass through the same, with the train, without stopping, and which said last-mentioned signal was then and there called and known by the name of the signal " to stop." And the jurors aforesaid, upon their oath aforesaid, do further present, that certain rules and directions had been and weje at the time of the committing of the said felony, established for the guidance of the conduct of the servants and police- men of the said company employed in and upon the said rail- way, and having the care and regulation of the said signals, and which said rules and regulations were sufficient and proper for the purposes aforesaid, and were, at the time of committing the said felony, in full force and effect, and well known to the said G. P., to wit, at the parish aforesaid, in the said county of Berks. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said G. P. on the day and y^r aforesaid, at the parish aforesaid, in the county of Berks aforesaid, in and upon one Arthur Augustus Lea feloniously did make an assault; and that the said G. P. so being such servant and policeman in the sen'^ice and employ- ment of the said Great "Western Railway Company as afore- said, then and there had, by virtue of such his employment, the care and regulation of the said signals, at a certain signal post 'erected and being near a certain station on the ^id line of the said railway, to wit, the Shrivenham Station, and near the line of the said railway there, and that before and on the said eleventh day of May in the year aforesaid, at the parish aforesaid, in the county of Berks aforesaid, it became and was the duty of the said G. P. to attend to the due and proper righting, exhibiting, and making of the said signals at the said last-mentioned station, and duly and properly to work, exhibit, and make the same, according to the rules and regulations there established for the guidance of the conduct of the servants and policemen of the said company employed in and upon the said railway as aforesaid. And the jurors aforesaid, upon their oath aforesaid, do further present, that on the day and year aforesaid, at the parish aforesaid, in the 23 266 HOMICIDE. [chap. XXVIII. county of Berks aforesaid, a certain train of carriages drawn by a locomotive engine, under the care and guidance of a certain driver thereof, to wit, one Robert Roscoe, was travelling on the said railway, to wit, from Exeter to ■ London, and was before and at the time of the committing of the felony by the said G. P. as hereinafter mentioned, due at the said Shriven- ham Station, to wit, at the hour of three of the clock in the afternoon of the said eleventh day of May, and was expected and intended, according to the time table and regulations by the said company in that behalf established, to arrive and pass through the said Shrivenhara Station, at the time and hour last aforesaid, as the said G. P. then and there well knew ; and that §ie said G. P. had then and there, in expecta- tion of the arrival of the said last-mentioned train of car- riages, made and turned on the signal called the " all right " signal. And the jurors aforesaid, upon their oath aforesaid, do further present, that afterwards and before the arrival of the said last-mentioned train of carriages at the Shrivenham Station, to wit, on the day and year aforesaid, at the parish aforesaid, in the county of Berks aforesaid, a certain carriage, to wit, a horse box, was put and placed and continued, and was upon and across and obstructing the same line of rails of the said railway, neai to the said Shrivenham Station, as that on which the said last-mentioned train of carriages was then travelling, and it thereupon then and there, and in consequence of such last-mentioned obstruction, became and was the duty of the said G; P. to alter, remove, and turn off the said signal called the " all right " signal, and to make, turn on, and keep made and turned on, the said signal called the signar"to stop." And the jurors aforesaid, upon their oath aforesaid, do further present, that the said G. P. then and there being wholly unmindful and neglectful of his duty in that behalf, at the time and place .last aforesaid, on the day and year aforesaid, at the parish aforesaid, in the county of Berks aforesaid, with force and arms, unlawfully and feloni- ously did neglect and omit to alter, remove, and turn off the said signal called the " all right " signal, and did then and there unlawfully and feloniously neglect and omit to make, CHAP. XXVni.] HOMICIDE. 267 turn on, and keep made and turned on, the said signal called the signal " to stop." By means of which several premises, and of the said felonious omissions and neglect by the said G. P. as aforesaid, the driver of the engine attached to the said last-mentioned train of carriages, to wit, the said R. R., was induced to believe, and did believe, that the line of rails of the said railway, upon which the last-mentioned train of carriages was then travelling, was then all clear and without obstruction, and that the said driver, to wit, the said R. R., might then safely pass through the said Shrivenham Station with the last-mentioned engine and train of carriages without stopping ; and the said driver, to wit, the said R. R., acting upon such belief as aforesaid, did thereupon, on the day and year aforesaid, at the parish aforesaid, in the county' of Berks aforesaid; drive the said engine so attached to and drawing the last-mentioned train of carriages as aforesaid, through the said Shrivenham Station, and in so drawing the said last- mentioned engine and train of carriages did thei. and -there unavoidably, and without any fault or default of the said R. R., with great force come into violent contact and collision with the said carriage, called a horse box, then being on, upon, and across and obstructing the same line of .rails of the said railway as that on which the said last-mentioned train of carriages was then travelling, near to the said Shrivenham Station there, by means of which said contact and collision caused and occasioned as aforesaid, the said A. A. L. then lawfully being and travelling in one of the carriages of the said last-mentioned train of carriages, was then and there vio- lently and forcibly thrown on and against the back and sides of the said carriage in which he was so travelling as aforesaid, and was then and there violently and forcibly cast and thrown from and out of the said CEirriage in which he was so travel- ling as aforesaid, down to arid upon the ground there ; by means of which said casting and throwing of the said A. A. L., as well to and against the sides and back of the said carriage in which he was so travelling as aforesaid, as from and out of the said carriage, down to and upon ihe ground there as aforesaid, the said A. A. L. then and there had and received, 268 HOMICIDE. [chap, xxvni. and the said G. P. then and there feloniously did give and cause to be given to the said A. A. L. divers mortal wounds, bruises, and contusionsj in and upon the head, body, arras, and legs of the said A. A. L., and divers mortal fractures of both the legs of the said A. A. L., and divers mortal ruptures of the bloodvessels in and upon the brain of the said A. A. L., of which said mortal wounds, bruises, and contusions, mortal fractures and mortal ruptures of the said A. A. L. on and from the said eleventh day of May in the year aforesaid, as well at the parish of Shrivenham aforesaid, in the county of Berks aforesaid, as at the parish of Swindon, in the county of Wilts, did languish, and languishing did live, and there, to wit, on the day and year last aforesaid, at the parish of Swindon aforesaid, in the county of Wilts aforesaid, of the said mortal wounds, bruises, and contusions, mortal fractures and mortal ruptures, did die. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said Gh P., in man- ner and form aforesaid, the said A. A. L., at the parish of Swindon aforesaid, in the county of Wilts aforesaid, feloni- ously did kill and slay ; against the peace, etc. Second Count. — The second count states that " It was the duty of the said G. P. as such servant and policeman as aforesaid, to make certain signals to the drivers of locomotive engines attached to and drawing or propelling trains travelling upon and along the said railway, and passing along the same at a certain part thereof, to wit, near a certain station, to wit, the said Shrivenham station, to wit, at the parish of Shriven- ham aforesaid, in the county of Berks aforesaid, for the pur- pose of giving warning and notice to the said drivers, whether the line of rails of the said railway on and upon which any such locomotive engine and train of carriages as aforesaid, should or might be passing at, near, and through the said Shrivenham station, was free of obstruction or not, of all which the said G. P. at the time of the committing of the said felony had full knowledge and notice, to wit, at the day and year last aforesaid, at the parish last aforesaid, in the county of Berks aforesaid." It then proceeds to aver that a train was travelling on the line, "on and along the part CHAP. XXVIII.] HOMICIDE. 269 of the said railway which lies in the said parish, etc., and up to, and towards the place where it was the duty of the said G. P. to make such signals as aforesaid," and that just before the time of its arrival at the said place, " there was a certain obstruction on and upon the same line of rails as that upon which the said last-mentioned locomotive engine and train was travelling, to wit, a certain horse box, standing, and being upon and across the said last-mentioned line of rails, near to the place where it was the duty of the said G. P. to make such signals as last aforesaid, to wit, at the parish last afore- said, in the county of Berks. And the said G. P. could, and might, and ought, then and there, to wit, at the parish last aforesaid, in the county of Berks, on the said eleventh day of May, in the year aforesaid, in the course of his duty, and in the exercise of reasonable and proper skiU and diligence, to have given warning and notice by means of the proper signal to the driver of the said last-mentioned locomotive engine, attached to and drawing the last-mentioned train of carriages, to wit, the said R. R., that there was then such obstruction as last aforesaid, in and upon the said line of rails, to wit, the said horse box. And the jurors, etc., do further present, that the said G. P. then and there being wholly unmindful and neglectful of his duty in that behalf, on, etc., at the parish, etc., with force and arms, unlawfully and feloniously (M neg- lect and omit to give notice and warning, by means of the proper signal, to the driver of the last-mentioned locomotive engine attached to and drawing the said last-mentioned train of carriages, to wit, the said R. R., that then there was an ob- struction upon the same line of rails as that on which the said last-mentioned train of carriages was then travelling, by means of which," etc. Third Covmt. — The third count states the averment of the signals, and of the prisoner's duty, thus : — Reciting, that the said G. P. was in the employ, etc., as a policeman, and that " for the safe and proper working and travelling of the several trains of carriages and locomotive engines proceeding along and upon the said railway, certain signals had been and were at the time of the committing of the offence by the said G. 23* 270 HOMICIDE. [chap, xsyhi. p. as hereinafter mentioned, established by the said company at and near a certain station upon the said railway, and at and near the said station, to wit, the Shrivenham station, at which the said G. P. was employed as aforesaid, and were well known to the said G. P., to wit, at the parish last afore- said, in the county of Berks aforesaid. And the jurors, etc., do further present, that on the said, etc., at the parish, etc., the said G. P. had the care and control of the said signals, at the said station, to wit, the Shrivenham station, at which the said G. P. was so employed as servant or policeman as aforesaid, and it then and there became and was the duty of the said G. P. by virtue of such his employment as aforesaid, from time to time, and at all times, as occasion might require, to make due and proper signals to the drivers of all locomotive engines travelling along and upon the said railway, and 'enter- ing the said station, to wit, the Shrivenham station." The count then proceeds to set forth, that a train was travelling on the said line of railway, that a horse box had been placed upon and across it so as to obstruct the passage of the train, " and that it thereupon then and there became the duty of the said G. P. to indicate by proper signals to the driver of the said last-mentioned train of carriages so due and about to enter and pass through the said last-mentioned station as afores^, that the line of rails of the said railway upon which the said last-mentioned train of carriages were then travelling, was there obstructed. And the jurors, etc., do further present, that the said G. P. afterwards, to wit, on the day, etc., at the parish, etc., wholly neglecting his duty in that behalf, with force and arms, unlawfully and feloniously did neglect and omit to indicate by proper signals to the driver of the said last-mentioned train of carriages so travelling upon the said railway as aforesaid, and so due, and about to enter and pass through the said last-mentioned station as aforesaid, that the line of rails of the said railway upon which the said last- mentioned train of carriages was then travelling, was then obstructed, but on the contrary thereof, the said G. P. then and there unlawfully and feloniously did indicate by signals to the driver of the said last-mentioned train of carriages, CHAP. XXTirf.] HOMICIDE. 271 that the line of rails of the said railway, on which the said last-mentioned train of carriages was then travelling, at or near the said last-mentioned station, was then aU clear and free from obstructions, by means of which several premises and the said felonious omissions and neglects of the said G. P." etc. etc. The "fourth count was a common count for manslaughter, by assaulting, beating, and bruising, etc. 4. For manslaughter against the driver and stoker of a rail- way engine, for negligently driving against another engine, whereby the deceased met his death} The jurors, etc., upon their oath present, that S. H. late of the parish of Richmond, in the county of Surrey, laborer, and W. W. late of the sabtie place, laborer, on the seventeenth day of November in the year of our Lord , with force and arms, at the parish aforesaid, in the county aforesaid, and within the jurisdiction of the said court, in and upon R. P. feloniously and wilfully did make an assault. And the jurors aforesaid, upon their oath aforesaid, do further present, that before and on the said seventeenth day^of November, the said S. H. was employed by a certain body corporate, to wit, the London and South-Western Railway Company, for the purpose of conducting, driving, managing, and controlling certain locomotive steam-engines belonging to the said Lon- don and South-Western Railway Company, and that the said W. W. before and on the day and year aforesaid, was employed by the said London and South- Western Railway Company, for the purpose of assisting the said S. H. in the conducting, driving, management, and control of such loco- motive steam-engines as aforesaid, and that, by virtue of such their respective employments, the said S. H. was, on the day and year aforesaid, at the parish aforesaid, in the county aforesaid, and within the jurisdiction of the said court, con- * 3 €ox, C. C. Appendix, p. Ivii. 272 HOMICIDE. [CHAP. XXVIII. ducting and driving, and then and there had the management and control of a certain locomotive steam-engine, to and be- hind which a certain carriage, called a tender, was then and there attached, and which said locomotive steam-engine and tender were then and there the property of and belon^ng to the said London and South- Western Railway Company, and were then and there in and upon a certain side line of rail- way leading into and upon a certain main line, to wit, the Richmond Railway, and the said W. "W. was then and there, the said S. H., in and about the said conducting, driv- ing, management, and control of the said locomotive steam- engine and tender, aiding and assisting, and that it then and there became and was the duty of the said S. H. and of the said W. W., by virtue of their said employment, not to con- duct or drive, or suffer or permit to be conducted or driven, the said locomotive steam-engine and tender from and off the said side line of railway, into, upon, or across the said main line of railway, in case any train or engine should be then due, and about to arrive at that part of the said main line of rail- way where the same was joined by the said side line of rail- way aforesaid ; yet the said S. H. and the said "W. W., well knowing the premises, and well knowing that a certain train, to wit, a train consisting of a certain other locomotive steam- engine, with a certain other tender, and divers, to wit, twenty carriages attached thereto and drawn thereby, was then and there lawfully travelling, and being propelled on and along the said main line of railway, and was then due and about to arrive at that part of the said main line of railway where the same was joined by the side line of railway aforesaid ; but disregarding their duty in that behalf, did, on the day and year aforesaid, at the parish aforesaid, in the county aforesaid, and within the jurisdiction of the said court, wilfuUy and feloniously, and with great force and violence, and in a wan- ton, negligent, and improper manner, and contrary to their said duty in that behalf, and while the said train was so then and there due, and about to arrive as aforesaid, conduct and drive, and Suffer and permit to be conducted and driven, the said first-mentioned locomotive steam-engine and tender from CHAP. XXVm.] HOMICIDE. 273 and off the said line of railway, into, upon, and across the said main line of railway, and into, upon, and against the said train so then and there lawfully travelling and being pro- pelled on and along the said main line of railway as afore- said ; and that the said S. H. and the said W. W. did thereby, and by means of the said several premises, and by reason of the shock and concussion thereby given and communicated to the said first-mentioned locomotive steam-engine, then and there wilfully and feloniously, and with great force and vio- lence, push, force, dash, drive, and jam, and cause to be pushed, forced, dashed, driven, and jammed in, upon, over, against, and between a certain part of the said first-men- tioned locomotive steam-engine, to wit, the hinder part thereof, the said R. P., who was then and there standing and being in and upon the said fijst-mentioned locomotive steam- engine, and did then and there, by means of the pushing, forcing, dashing, and driving and jamming aforesaid, wilfully and feloniously inflict and cause to be inflicted in and upon the head, to wit, in and upon the right side of the head of the said R. P., divers mortal wounds and fractures, and in and upon the body, to wit, in and upon the back, sides, belly, thighs, legs, and feet of the said R. P., divers mortal wounds, bruises, contusions, burns, and scalds, of which said several mortal wounds, fractures, bruises, contusions, burns, and scalds, the said R. P., on the day and year aforesaid, at the parish aforesaid, in the county aforesaid, and within the jurisdiction of the said court, instantly died. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said S. H. and the said W. W., the said R. P., in the manner and by the means aforesaid, wilfully and feloniously did kill and slay ; against the peace, etc. Second Count. — And the jurors aforesaid, upon their oath aforesaid, do further present, that the said S. H. and the said W. W., on the day and year aforesaid, with force and arms, at the parish of Richmond, in the county of Surrey, and within the jurisdiction of the said court, in and upon the said R. P., feloniously and wilfully did make an assault. And the jurors aforesaid, upon their oath aforesaid, do further present' 274 HOMICIDE, [chap, xxvin. that before and on the day and year aforesaid, the said S. H. was employed by a certain corporate body, to wit, the Lon- don and South- Western Railway Company, for the purpose of conducting, driving, managing, and controlling certain locomotive steam-engines belonging to the said London and South- Western Railway Company, and the said W. W., be- forg and on the day and year aforesaid, was employed by the said London and South- Western Railway Company, for the purpose of assisting the said S. H. in the conducting, driving, management, and control of such locomotive steam-engines as aforesaid, and that by virtue of such their respective employ- ments, the said S. H. was, on the day and year aforesaid, at the parish aforesaid, in the county aforesaid, and within the jurisdiction of the said court, conducting and driving, and then and there had the management and control of a certain locomotive steam-engine, to and behind which a certain car- riage, called a tender, was then and there attached, and which said locomotive steam-engine and tender were then and there the property of and belongin,g to the said London and South- western Railway Company, and were then and there in and upon a certain side line of railway, leading into and upon a certain main line of railway, to wit, the Richmond Railway, and that the said W. W. was then and there, the said S. H., in and about the said conducting, driving, management, and control of the said locomotive steam-engine and tender, aid- ing and assisting, and that it then and there became and was the duty of the said S. H. and of the said W. W., by virtue of their said employment, not to conduct or drive, or suffer or permit to be conducted or driven, the said locomotive steam- engine and tender from and off the said side line of railway, into, upon, or across the said main line of railway, in case any train or engine should be then due and about to arrive at that part of the said main line of railway where the same was joined by the said side line of railway aforesaid ; yet the said S. H. and the said W. W., well knowing the premises, and well knowing that a certain train, consisting of another loco- motive steam-engine, with a certain other tender, and divers, to wit, twenty carriages attached thereto and drawn thereby, CHAP, xxvni.] HOMietoE. 275 was then and there lawfully travelling and being propelled on and along the said main line of railway, and was then due and about to arrive at that part of the said main line of rail- way where the same was joined by the side line of railway aforesaid, but disregarding their duty in that behalf, did, on the day and year aforesaid, at the parish aforesaid, in the county aforesaid, and within the jurisdiction of the said court, wilfully and feloniously, and with great force and violence, wilfully and in a wanton, negligent, and improper manner, contrary to their said duty in that behalf, and while the said train was so then and there due and about to arrive as afore- said, conduct and drive, and suffer and permit to bp con- ducted and driven, the said first-mentioned locomotive steam- engine and tender from and off the said side line of railway, into, upon, and across the said maiil line of railway, and thereby and by reason of the said premises, and of the several negligent and improper conduct of the said S. H. and of the said W. W., the said train" so then travelling and being pro- pelled on and along the said main line of railway, did then and there unavoidably, with great force and violence, strike, run, and impinge against the said first-mentioned locomotive steam-engine; and by means of the said several premises, and of the shock and concussion thereby given and communi- cated to the said first-mentioned locomotive steam-engine, the said R. P., who was then and there standing and being in and upon the said first-mentioned locomotive steam-engine, was then and there, with great force and violence, pushed, forced, dashed, driven, and jammed in, upon, oyer, and be- tween a certain part of the said first-mentioned locomotive steam-engine, to wit, the hinder part thereof, and by means of the said pushing, forcing, dashing, driving, and jamming, then and there were made and inflicted in and upon the head, to wit, in and upon the right side of the head of the said E,. P., divers mortal wounds and fractures, and in and upon the body, to wit, in and upon the back, sides, belly, thighs, legs, and feet of the said R. P., divers mortal wounds, bruises, con- tusions, burns, and scalds, of which said several mortal wounds, fractures, bruises, contusions, burns, and scalds, the 276 HOMICIDE. [chap, xxvin. said R. P., on the day and year aforesaid, at the parish afore- said, in the county aforesaid, and within the jurisdiction of the said court, instantly died. And so the jurors, etc. Third Count. — And the jurors aforesaid, upon their oath aforesaid, do further present, that the said S.*!!., and the said W. W., on the day and year aforesaid, with force and arms, at the parish of Richmond aforesaid, in the county of Surrey aforesaid, and within the jurisdiction of the said court, in and upon the said R. P., feloniously and wilfully did make an assault, and that the said S. H. was then and there con- ducting and driving, and then and there had the management and coptrol of a certain locomotive steam-engine, to and be- hind which a certain carriage, called a tender, was then and there attached, and which said locomotive steam-engine and tender were then and there in and upon a certain way, to wit, a certain side line of railway leading into and upon a certain main line of railway, to wit, the Richmond Railway, and that the said W. W. was then and there, the said S. H., in and about the said conducting, driving, management, and control of the said locomotive steam-engine and tender, aid- ing and assisting ; and that it then and there became and was the duty of the said S. H., and of the said W. W., to use all due and proper caution in and about the conducting and driv- ing the said locomotive steam-engine and tender, from and off the said side line of railway in, upon, or across the said main line of railway, yet the said S. H., and the said W. W., well knowing the premises, and not regarding their duty in that behalf, did not, nor would use aU due and proper caution in and about the conducting and driving of the said locomo- tive steam-engine and tender, from and off the said side line of railway, in, upon, or across the said main line of railway ; but on the contrary thereof, did then and there, wilfully and feloniously, and with great force and violence, and without due and proper caution, and in a negligent and improper manner, and contrary to their said duty in that behalf, con- duct and drive the said locomotive steam-engine and tender from and off the said side line of railway, into, upon, and across the said main line of railway, and into, upon, and CHAP. XXVni.] HOMICIDE. 277 against a certain train, to. wit, a train consisting of another locomotive steam-engine, with a certain other tender, and divers, to wit, twenty carriages attached thereto, and drawn thereby, which said train was then and there lawfully travel- ling and being propelled on and along the said main line of railway ; and that the said S. H. and W. W. did thereby and by means of the said several premises, and by reason of the shock and concussion thereby given and communicated to the said first-mentioned locomotive steam-engine, then and there wilfully and feloniously, and with great force and vio- lence, push, force, dash, drive, and jam, and cause to be pushed, forced, dashed, driven, and jammed in, upon, over, and be- tween a certain part of the said first-mentioned locomotive steam-engine, to wit, the hinder part thereof, the said R. P., who was then and there standing, and being in and upon the said first-mentioned locomotive steam-engine, and did then and there, by means, of the said pushing, forcing, dashing, driving, and jamming, wilfully and feloniously inflict, and cause to be inflicted, in and upon the head, to wit, in and upon the right side of the head of the said R. P., divers mortal wounds and firactures, and in and upon the body, to wit, in and upon the back, sides, belly, thighs, legs, and feet, of the said R. P., divers mortal wounds, bruises, contusions, burns, and scalds, of which said several mortal wounds, fractures, bruises, contusions, burns, and scalds, the said R. P., on the day and year aforesaid, at the parish aforesaid, in the county aforesaid, and within the jurisdiction of the said court, instantly died. And so the jurors aforesaid, etc. Fourth Count. -^ And the jurors aforesaid, upon their oath aforesaid, do further present, that the said S. H., and the said W. W., on the day and ycEir aforesaid, with force and arms, at the parish of Richmond aforesaid, in the county of Surrey aforesaid, and within the jurisdiction of the said court, in and upon the said R. P., feloniously did make an assault, and that the said S. H. was then and there conducting and driv- ing, and then and there had the management and control of a certain locomotive steam-engine, to and behind which a certain carriage called a tender, was then and there attached, 24 278 HOMICIDE. [chap, xxvin. and which said locomotive steam-engine and tender were then and there in and upon a certain way, to wit, a certain side line of railway, leading into and upon a certain main line of railway, to wit, the Richmond railway, and that the said W. W. was then and there, the said S. H., in and about the said conducting, driving, management, and control of the said locomotive steam-engine and tender, aiding and assisting, and that it then and there became and was the duty of the said S. H., and of the said W. W., to use all due and proper caution in and about the conducting and driving the said locomotive steam-engine and tender ffom and off the said side line of railway, in, upon, or across, the said main line of railway ; yet the said S. H., and the said W. W., well know- ing the premises, and not regarding their duty in that behalf, did not, nor would use all due and proper caution in and about the conducting and driving of the said locomotive steam-engine and tender, from and oif the said side line of raUviray, in, upon, or across the said main line of railway, but on the contrary thereof, did then and there wilfully and felo- niously, and with great force and violence, and without due and proper caution, and in a negligent and improper manner, and contrary to their said duty in that behalf, conduct and drive the said locomotive steam-engine and tender, from and off the said side line of railway, into, upon, and across the said main line of railway, and thereby and by reason of the said several premises, and of the said negligent and improper con- duct of the said S. H., and of the said W. W., a certain train, to wit, a train consisting of a certain other locomotive steam-engine, with a certain other tender, and divers, to wit, twenty carriages attached thereto, and drawn thereby, which said train was then and there lawfully travelling and being propelled on and along the said main line of railway, did then and iJiere inadvertently, with great force and violence, strike, run, and impinge upon and against the said first-men- tioned locomotive steam-engine, and by means of the said several premises, and of the shock and concussion thereby given and communicated to fhe said first-mentioned locomo- tive steam-engine, the said R. P., who was then and there CHAP. XSVin.J HOMICIDE. 279 standing and being in and upon the said first-mentioned loco- motive steam-engine, was then and there with great force and violence pushed, forced, dashed, driven, and jammed in, upon, against, over, and between a certain part of the said first- mentioned locomotive steam-engine, to wit, the hinder part thereof, and by means of the said pushing, forcing, dashing, driving, and jamming, then and there were made and inflicted in and upon the head, to wit, in and upon the right side of the head of the said R. P., divers mortal wounds and frac- tures, and in and upon the body, to wit, in and upon the back, sides, belly, thighs, legs, and feet of the said R. P. divers mor- tal wounds, bruises, contusions, burns, and scalds, of which said several mortal wounds, fractures, bruises, contusions, burns, and scalds, the said R. P., on the day and year afore- said, at the parish aforesaid, in the county aforesaid, and within the jurisdiction of the said court, instantly died. And so the jurors aforesaid, etc. Fifth Count. — And the jurors aforesaid, upon their oath aforesaid, do further present, that the said S. H., and the said W. W., on the day and year aforesaid, with force and arms, at the parish of Richmond aforesaid, in the county of Sur- rey aforesaid, and within the jurisdiction of the said court, in and upon the said R. P., feloniously and wilfully did make an a^ault ; and that the said S. H., and the said W. W., a certain locomotive steam-engine, to and behind which a cer- tain carriage called a tender, was then and there attached, and which said locomotive steam-engine and tender were then and there being forced and propelled by the power of steam on and along a certain way, to wit, a railway ; and which said locomotive steam-engine and tender, the said S. H. was then and there managing, controlling, conducting, and driv- ing, in and along the said railway, and in the managing, con- trolling, conducting, and driving whereof, the said W. W.was then and there the said S. H. aiding and assisting, did then and there wilfully and feloniously, by the wanton and felo- nious negligence of them and each of them respectively, and by the wilful and felonious disregard of the duties incumbent upon them, and each of them respectively, in that behalf, 280 HOMICIDE. [chap, xxviii. cause, occasion, permit, and suffer to strike and run into, upon, and against, and to be with great force and violence forced, driven, and dashed into, upon, and against a certain other locomotive steam-engine, to which said last-mentioned loco- motive steam-engine a certain other tender and divers, to wit, twenty carriages, were then and there attached, and which said last-mentioned locomotive steam-engine and tender and carriages were then and there lawfully travelling and being propelled on and along the said railway, and that the said S. H., and the said W. W., did thereby, and by means of the said several premises, and by reason of the shock and con- cussion thereby caused and communicated to the said first- mentioned locomotive steam-engine and tender, then and there wilfully and feloniously, and with great force and vio- lence, push, force, dash, drive, and jam, and cause to be pushed, forced, dashed, driven, and jammed in, upon, over, and between a certain part of the said first-mentioned loco- motive steam-engine, to wit, the hinder part thereof, the said R. P., who was then and there standing and being in and upon the said first-mentioned locomotive steam-engine, and did then and there, and by means of the said pushing, forcing, dashing, driving, and jamming, wilfully and feloniously inflict, and cause to be inflicted, in and upon the head, to wit, the right side of the head of the said R. P., divers mortal wounds and fractures, and in and upon the body, to wit, in and upon the back, sides, belly, thighs, legs, and feet of the said R. P., divers mortal wounds, contusions, bruises, burns, and scalds, of which said several wounds, fractures, contusions, bruises, burns, and scalds, the said R. P., on the day and year afore- said, at the parish aforesaid, in the county aforesaid, and within the jurisdiction of the said court, instantly died. And so the jurors aforesaid, etc. Siodh Count. — And the jurors aforesaid, upon their oath aforesaid, do further present, that the said S. H. and the said W. W., on the day and year aforesaid, with force and arms, at the parish of Richmond aforesaid, in the county of Surrey aforesaid, and within the jurisdiction of the said court, in and upon the said R. P. feloniously and wilfully did make an CHAP. XSVni.] HOMICIDE. 281 assault, and that the said S. H. and the said W. W., a certain locomotive steam-engine, to and behind which a cer- tain carriage called a tender was then and there attached, and which said locomotive steam-engine and tender were then and there being forced and propelled b3»the power of steam on and along a certain way, to wit, a railway, and which said locomotive steam-engine and tender the said S. H. was then managing, controlling, conducting, and driving in and along the said railway, and in the managing, controlling, conducting, and driving whereof, the said W. W. was then and there the said S. H. aiding and assisting, did then and there wilfuUy and feloniously, and by the wanton and felonious negligence of them and each of them respectively, and by the wilful and feloniQus disregard of the duties incumbent upon them and each of them respectively in that behalf, and with great force and violence, conduct, drive, and propel, and cause and permit to be conducted, driven, and propelled to, upon, along, and across a certain other part of the railway aforesaid, and thereby and by reason of the said several premises and of the said wilful and felonious negligence of the said S. H., and of the said W. W., a certain train, to wit, a train consisting of a certain other locomotive steam-engine, with a certain other tender, and divers, to wit, twenty carriages attached thereto and drawn thereby, and which said train was then and there lawfully travelling and being propelled on and along the said last-mentioned part of the said line of railway, did then and there unavoidably and with great force and violence strike, drive, dash, and impinge upon and against the said first-mentioned locomotive steam-engine ; and by means of the said several premises and of the shock and concussion thereby given and communicated to the said first-mentioned locomotive steam-engine, the said R. P., who then and there was standing and being in and upon the said first-mentioned locomotive steam-engine, was then and there with great force«and violence pushed, forced, dashed, driven, and jammed in, upon, over, and between a certain part of the said first-mentioned locomotive steam-engine, to wit, the hinder part thereof, and by means of the said pushing, forc- 24* 282 HOMICIDE. [chap. XXVIII. ing, dashing, driving, and jamming, then and there were in- flicted in and upon the head, to wit, in and upon the right side of the head of the said R. P., divers mortal wounds and fractures, and in and upon the body, to wit, in and upon the back, sides, belly, thighs, legs, and feet of the said R. P., divers mortal wounds, bruises, contusions, burns,and scalds, of which said mortal wounds, fractures, bruises, contusions, burns, and scalds, the said R. P., on the day and year aforesaid, at the parish aforesaid, in the county aforesaid, and within the juris- diction of the said court, instantly died. And so the jurors, etc. ■ Seventh Count. — And the jurors aforesaid, upon their oath aforesaid, do further present, that the said S. H. and the said W. W., on the day and year aforesaid, with force and arms at the parish of Richmond aforesaid, in the county of Surrey aforesaid, and within the jurisdiction of the said court, in and upon the said R. P., feloniously and wilfully did make an as- sault, and that •the said S. H. and W. W., a certain locomo- tive steam-engine, to and behind which a certain carriage called a tender was then and there attached, and which said locomotive steam-engine and tender were then and there the property of a certain corporate body, to wit, the London and South-Western Railway Company, and were then and there lawfully standing and being in and upon a certain railway, to wit, at and near a certain station belonging to the said railway, did then and there wilfully and feloniously and with- out any lawful authority in that behalf, and with great force and violence, conduct, drive, and propel, and cause, permit, and suffer to be conducted, driven, and propelled away from the said station along, to, upon, and across a certain other part of the railway aforesaid, and thereljy and by reason of the said several premises a certain train, to wit, a train consisting of a certain other locomotive steam-engine, with a certain other tender, and divers, to wit, twenty carriages attached thereto and drawn thereby, and which said train was then and there lawfully travelling and being propelled on aftd along the line of the said railway, did then and there unavoidably and with great force and violence strike, dash, drive, and impinge upon and against the said first-mentioned locomotive steam-engine, CHAP. XXVIII.] HOMICIDE. 283 and by means of the said several premises, and of the shock and concussion thereby given and communicated to the said first-mentioned locomotive steam-engine, the said E. P., who then and there was standing and being in and upon the said first-mentioned locomotive steam-engine, was then and there with great force and violence pushed, forced, dashed, driven, and jammed in, upon, over, and between a certain part of the said first-mentioned locomotive steam-engine, to wit, thfe hinder part thereof, and by means of the said pushing, forc- ing, dashing, driving, and jamming, then and there were made and inflicted in and upon the head, to wit, in and upon the right side of the head of the said R. P., divers mortal wounds and fractures, and in and upon the body, to wit, in and upon the back, sides, belly, thighs, legs, and feet of the said E. P., divers mortal wounds, bruises, contusions, burns, and scalds, of which said several mortal wounds, fractures, bruises, con- tusions, burns, and scalds, the said E. P., on the day and year aforesaid, at the parish aforesaid, in the county aforesaid, and vsdthin the jurisdiction of the said court, instantly died. And so \he jurors, etc. 5. For manslaughter against the keeper of an asylum for pauper children, for not supplying one of them with proper food and lodging, whereby the child died}- « Thie jurors, etc., upon their oath present, that heretofore and during aU the days and times hereinafter in this count mentioned, James Andrews was a poor, indigent, and desti- tute infant child of very tender age, to wit, of the age of six years, and unable to provide himself with necessary food, shelter, or clothing, or any of the necessaries of life ; and that heretofore, to wit, on the twenty-eighth day of October in the year of our Lord '-, Peter Bartholomew Drouet, late of the parish of Tooting, in the county of Surrey, and within the juris- diction of the said Central Criminal Court, gentleman, being ' 3 Cox, C. C. Appendix, p. Ixxv. 284 HOMICIDE. [chap. XXTin. the keeper of a certain asylum for the reception of poor, des- titute, and indigent children, at the parish aforesaid, and within the jurisdiction of the said court, to wit, called and known by the name of Surrey Hall, at the request and with the approbation of the guardians of the poor of the Holborn Union, in the county of Middlesex, who then had the charge and custody of the said J. A., and then under the laws of this realm relating to the relief of the poor, were charged with the relief and support of the said J. A. within their said union, afr his request received, and had the said J. A. in the charge and custody of the said P. B. D., by him to be provided with good and proper abode, shelter, and lodging, and all the necessary sleeping accommodation, meat, drink, food, and clothing, for and on behalf of the said guardians, for reward to the said P. B. D. in that behalf. And the jurors further present, that thenceforth and on and from the said twenty-eighth day of October in the year of our Lord , and upon and during aU the days and times between that day and the fifth day of January in the year of our Lord , the said P. B. D. kept and detained the said J. A., and the said J. A. continued and remained, and was under the charge, care, dominion, govern- ment, custody, and control of the said P. B. D. in the said asylum, to wit, at the parish aforesaid and within the juris- diction of the said Central Criminal Court, and the said J. A. was, during aU the several days and times aforesaid, wholly subject to and dependent upon the said P. B. D. for such abode, shelter, lodging, sleeping accommodation, meat, drink, food, and clothing as aforesaid, and was unable to obtain the same, or any of them from any other source, or from any other person or persons whomsoever. And the jurors aforesaid, upon their oath aforesaid, do further present, that thereupon, to wit, upon the said twenty-eighth day of October in the year of our Lord , and thenceforth during all the days and times in this count aforesaid, it became and was the duty of the said P. B. D. to furnish, provide, and supply the said J. A. with good and wholesome food, meat, and drink, in such sufficient quantities as should be necessary for the healthy support, nourishment, and sustenance of the body of CHAP, xxvrn.] homicide. 285 the said J. A. ; and also to farnish, provide, and supply the said J. A. with such proper, suitable, and wholesome lodging, shelter, and abode, as should, upon and during all the several days and times aforesaid, be needful for the said J. A., and be necessary to preserve him in a good and sound state of bodily health, and free from sickness, weakness, and disorder ; and also during all the days and times aforesaid, to furnish, provide, and supply the said J. A. with such healthy, whole- some, and proper bedding and sleeping accommodation as should be necessary to enable the said J. A. to enjoy a due and proper quantity of wholesome, healthy, and refreshing rest and sleep ; and also to fafnish, provide, and supply the said J. A. with a sufficient quantity of warm and wholesome clothing, for the protection of the body of the said J. A. from the cold, damp, and inclemency of the weather ; all of which said several premises the said P. B. D., upon and during all the several days and times in this count mentioned, well knew. And the jurors aforesaid, upon their oath aforesaid, do farther present, that the said P. B. D., on the several days aforesaid, with force and arms, at the parish of Tooting afore- said, and within the jurisdiction of the said Central Criminal Court, in and upon the said J. A, feloniously did make divers assaults ; and that the said P. B. D., not regarding his duty as aforesaid, upon all and every the days aforesaid, and dur- ing all the said times, whilst the said .T. A. remained and con- tinued under the care, charge, dominion, government, cus- tody, and control of the said P. B. D. in the said asylum, at the parish of Tooting aforesaid, and within the jurisdiction of the said Central Criminal Court, feloniously did omit, neg- lect, and refuse to furnish, provide, or supply the said J. A. with good and wholesome food, meat, and drink, in such suf- ficient quantities as were upon and during aU and every of those days respectively, and during all the time aforesaid, necessary for the healthy support, nourishment, and suste- nance of the body of the said J. A., according to the duty of the said P. B. D. in that behalf, and on the contrary thereof, upon and during all and every the days aforesaid, and during all the time aforesaid, at the parish of Tooting aforesaid, and 286 HOMICIDE. [chap. xxvm. within the jurisdiction of the said Central Criminal Court, feloniously, and without any lawful excuse whatsoever, did furnish, provide, and supply the said J. A. with food, meat, and drink in very insufficient and inadequate quantities, and in no sufficient and adequate quantity or quantities whatso- ever, for such support, nourishment, and sustenance of the body of the said J. A. as aforesaid ; and that the said P. B. D., not regarding his duty as aforesaid, upon and during all and every of the days aforesaid, and during all the said time whilst the said J. A. remained and continued under such charge, care, dominion, government, custody, and control as aforesaid, in the said asylum at the parish of Tooting afore- said, and within the jurisdiction of the said Central Criminal Court, feloniously did omit, neglect, and refuse to furnish, provide, or supply the said J. A. with such proper, suitable, and wholesome lodging, shelter, and abode as was, upon and during all the several days aforesaid, and during all the time aforesaid, needful for the said J. A., and necessary to preserve him in a good and sound state of bodily health, and free from sickness, weakness, and disorder, and as, according to the said duty of the said P. B. D., he ought to have done, and on the contrary thereof, the said P. B. D., at the parish of Tooting aforesaid, and within the jurisdiction of the said Central Criminal Court, upon and during aU the several days aforesaid, and during all the time aforesaid, knowingly, feloni- ously, and contrary to his duty in that behalf, did keep the said J. A., and force, compel, and oblige the said J. A. to be and remain in divers ill-ventUated and unwholesome rooms, inhabited by and overcrowded with an excessive and injuri- ous number of other persons in the said asylum, and feloni- ously did expose the said J. A., and force and compel the said J. A. to be and remain exposed for divers long spaces of time, on each of the days aforesaid, to divers fetid, injurious, noxious, unwholesome, and pestilential exhalations and vapors in, near, to, around, and about the said asylum then arising and existing ; and that the said P. B. D., not regarding his daty as aforesaid, upon and during all and every the days aforesaid, and during all the said time whilst the said J. A. CHAP. XXVin.] HOMICIDE. 287 remained and continued under such charge, care, dominion, government, custody, and control as aforesaid, in the said asylum, at the parish of Tooting aforesaid, and within the jurisdiction of the said Central Criminal Court, feloniously did omit, neglect, and refuse to furnish, provide, and supply the said J. A. with such healthy, wholesome, and proper bedding and sleeping accommodation as was necessary to enable the said J. A. on all and every the said several days aforesaid, to enjoy a due quantity of wholesome, healthy, and refreshing rest and sleep, and as, according to the duty of the said P. B. D., he ought to have done, and on the contrary thereof, upon divers nights during all the time aforesaid, at the parish of Tooting aforesaid, and within the jurisdiction of the said Central Criminal Court, feloniously and knowingly did force, oblige, and compel the said J. A. to lie and be in, a certain ill-ventUated and unwholesome room, then overcrowded with an excessive and injurious number of other persons in the said asylum, and to be and remain, for divers long spaces of time on each of the nights aforesaid, in divers fetid, injurious, noxious, unwholesome, and pestilential vapors and exhala- tions in the said room arising and existing, and also to lie and be in a certain small bed in the said room, together with two other persons, to wit, Joseph Andrews and William Derby- shire, whereby the said bed became and was, on all and every of the said nights, rendered unwholesome and injurious to the said J. A., and totally unfit for and incapable of affording to the said J. A. such wholesome, healthy, and refreshing sleep as aforesaid ; and that the said P. B. D., not regarding his duty as aforesaid, upon and during all and every the days aforesaid, and during all the said time whilst the said J. A. remained and continued under such charge, care, dominion, government, custody, and control as aforesaid, in the said asylum, at the parish of Tooting aforesaid, and within the jurisdiction of the said court, feloniously did omit, neglect, and refuse to furnish, provide, or supply the said J. A. with any sufficient quantity of warm and wholesome clothing, or with a sufficient quantity of any clothing whatever for the protection of the body of the said J. A. from the cold, damp, 288 HOMICIDE. [chap, xxvin. and inclemency of the weather, and as, according to the duty of the said P. B. D., he ought to have done, and on the con- trary thereof, during divers cold, wet, and inclement days dur- ing the time aforesaid, at the parish aforesaid, and within the jurisdiction of the said Central Criminal Court, feloniously, and contrary to his duty in that behalf, left the said J. A. ex- posed, and then and there suffered and permitted the said J. A. to remain exposed, for divers long spaces of time, to the cold, damp, and inclemency of the weather, etc., without any suffi- cient or adequate quantity of clothing or covering for his body, and with a totally inadequate and insufficient quantity of cloth- ing and covering for the body of the said J. A., to protect him from the severity and inclemency of the weather. By reason and means of which said several felonious acts, defaults, and omissions of the said P. B. D. hereinbefore alleged, the said J. A. afterwards, on the said fifth day of January in the year of our Lord , at the parish of Tooting aforesaid, and within the jurisdiction of the said court, became and was, and the said P. B. D. did thereby then and there feloniously cause and occa- sion the said J, A. to become and be mortally sick, weak, dis- eased, disordered, and distempered in his body. Of which said mortal sickness, weakness, disease, disorder, and distemper, the said J. A., on and from the said last-mentioned day in the year of our Lord , until the sixth day of January in the same year, as well at the parish aforesaid and within the jurisdiction of the said court, as at the parish of Saint Pan- eras, in the county of Middlesex, and within the jurisdiction of the said court, did languish, and languishing did live, and then on the said last-mentioned day, at the parish last afore- said, in the county last aforesaid, and within the jurisdiction of the said court, of the mortal sickness, weakness, disease, disorder, and distemper aforesaid, did die. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said P. B. D., the said J. A., in manner and form aforesaid, feloni- ously did kill and slay ; against the peace, etc. Second Cowit. — The same as the first, except that it charged the acts of omission only. Third Count. — The same as the first, but charging acts of commission only. CHAP. XXVm.] HOMICIDE. 289 Fourth Count. — The jurors aforesaid, upon their oath aforesaid, do further present, that heretofore and during all the days and times hereinafter in this count mentioned, J. A. hereinafter in this count mentioned, was a poor, indigent, and destitute infant child of a tender age, to wit, of the age of six years, and unable to provide himself with necessary food, shelter, or clothing, or any of the necessaries of life, and that heretofore, to wit, on the said twenty-eighth day of October, in the year of our Lord , the said P. B. D. beii\g the keeper of the said asylum, in the first count of this indict- ment mentioned, to wit, at the parish of Tooting aforesaid, and within the jurisdiction of the said court, voluntarily received the said J. A. into the charge and custody of the said P. B. D., and the said P. B. D. thenceforth and on and from the said twenty-eighth day of October, and upon and during all the days and times between that day and the fifth day of January, in the year of our Lord , kept and de- tained the said J. A., and the said J. A. continued, remained, and was under the care, charge, dominion, government, cus- tody, and control of the said P. B. D., in the said asylum, to wit, at the parish of Tooting aforesaid, and within the juris- diction of the said Central Criminal Court, and the said J. A. was, during all the severed days and times in this count aforesaid, wholly subject to and depended upon the said P. B. D. for abode, shelter, lodging, sleeping accommodation, meat, drink, food, and clothing, and was unable to obtain the same, or any of them, from any other source or from any other person or persons whomsoever. And the jurors afore- said do further present, that the said P. B. D., on the several days, in this count aforesaid, at the parish of Tooting, afore- said, and within the jurisdiction of the said Central Criminal Court, in and upon the said J. A., feloniously did make divers assaults, and that the said P. B. D., upon and during all and every the days in this count aforesaid, and during all the said time whilst the said J. A. remained and continued under the care, charge, dominion, government, custody, and control of the said P. B. D., in the said asylum, as in this count men- tioned, at the parish of Tooting aforesaid, and within the 25 290 HOMICIDE. [chap, xxyui. jurisdiction of the said Central Criminal Court, feloniously did omit, neglect, and refuse to furnish, provide, or supply the said J. A. with meat and drink in sufficient quantities for the support, nourishment, and sustenance of the body of the said J. A., according to the duty of the said P. B. D., in that be- half; but on the contrary thereof, upon and during all and every the days in this count aforesaid, and during all the time in this count aforesaid, at the parish of Tooting aforesaid, and within the jurisdiction of the said court, feloniously and with- out any lawful excuse whatsoever, did furnish, provide, and supply the said J. A. with food, meat, and drink in very insuf- ficient and inadequate quantities, and in no sufficient and adequate quantity whatsoever for such support, nourishment, and sustenance of the body of the said J. A., as in this count aforesaid, and that the said P. B. D., upon and during all and every the days in this count aforesaid, and during aU the said time whilst the said J. A. remained and continued under such charge, care, dominion, government, custody, and control, as in this count aforesaid, in the said asylum, at the parish of Tooting aforesaid, and within the jurisdiction of the said Central Criminal Court, feloniously did omit, neglect, and re- fuse to furnish, provide, or supply the ssiid J. A. with such proper and suitable lodging, shelter, and abode, as was, upon all and every the days in this count aforesaid, and during aU the said last-mentioned time, needful for the said J. A. and necessary to preserve him in a good state of bodily health, according to his duty in that behalf, but on the contrary thereof, the said P. B. D., upon all the several days and times in this count aforesaid, at the parish of Tooting aforesaid, and within the jurisdiction of the said Central Criminal Court, knowingly and feloniously did force, compel, and oblige the said J. A. to be and remain for divers long spaces of time, in divers ill-ventilated and unwholesome rooms and apart- ments, then overcrowded with an excessive and injurious number of other persons in the said asylum, and feloniously did expose the said J. A,, and force, oblige, and compel the said J. A. to be and remain exposed for divers long spaces of time to divers fetid, injurious, noxious, unwholesome, and pes- CHAP. XXVIII.] HOMICIDE. 291 tilential vapors and exhalations in, near, to, around, and about the said asylum, then arising and existing; and that the said P. B. D., upon and during all and every the days in this count aforesEiid, during all the time whilst the said J. A. remained and continued under such charge, care, dominion, government, custody, and control of the said P. B. D., as in this count aforesaid, at the parish of Tooting aforesaid, and within the jurisdiction of the said Central Criminal Court, felo- niously did omit, neglect, and refuse to furnish, provide, or supply the said J. A. with such bedding and sleep- ing accommodation as was necessary to enable the said J. A., on all and every the several days in this count afore- said, to enjoy a due quantity of wholesome, healthy, and refreshing rest and sleep, according to the duty of the said P. B. D. in that behalf; but on the contrary thereof, upon divers nights during the time in this count aforesaid, at the parish of Tooting aforesaid, and within the jurisdiction of the said court, feloniously and knowingly did force, oblige, and com- pel the said J. A. to lie and be in a certain iU-ventilated and unwholesome room, then overcrowded with an excessive and injurious number of other persons, and io be and remain for divers long spaces of time in divers fetid, injurious, noxious, unwholesome, and pestilential vapors and exhalations in the said room then arising and existing, and also to lie and be in a certain small bed in the said room, together with two other persons, to wit, J. A. and W. D., whereby the said bed be- came and was on all and every of the said nights totally un- fit for and incapable of affording the said J. A. any whole- some, healthy, or refreshing sleep whatsoever, and that the said P. B. D., not regarding his duty in that behalf, upon aU and every the days in this count aforesaid, and during all the said time whilst the said J. A. remained and continued under such charge, care, dominion, government, custody, and con- trol, as in this count aforesaid, at the parish of Tooting afore- said, and within the jurisdiction of the said Central Criminal Court, feloniously did omit, neglect, and refuse to furnish, pro- vide, or supply the said J. A. with a sufficient quantity of any clothing or covering whatsoever, for the protection of the body of the said J. A. from the cold, damp, and inclemency of 292 HOMICIDE. [chap. XXVIII. the weather, according to the duty of the said P. B, D. in that behalf, but on the contrary thereof, during divers of the said days, in this count before mentioned, which were damp, cold, and inclement, at the parish of Tooting aforesaid, and within the jurisdiction of the said court, feloniously and con- trary to his duty in that behalf, left the said J. A. exposed, and then and there suffered and permitted the said J. A. to be and remain exposed for divers long spaces of time without any sufficient or adequate quantity of clothing or covering for his body, but with a totally inadequate and insufficient quantity of clothing and covering for the body of the said J. A., to protect him from the severity and inclemeficy of the weather, by reason and means of which said several felonious acts, defaults, and omissions of the said P. B. D. in this count before alleged, the said J. A. afterwards, to wit, on the fifth day of January in the year of our Lord , at the parish of Tooting aforesaid, in the county of Surrey aforesaid, and within the jurisdiction of the said court, became and was, and the said P. B. D. did thereby then and there feloniously cause and occasion the said J. A. to become and be mortally sick, weak, diseased, disordered, and distempered in his body. Of which said last-mentioned mortal sickness, weakness, disease, disorder, and distemper, the said J. A., on and from the said last-mentioned day until the sixth day of January, in the year of our Lord , as well at the parish of Tooting aforesaid, and within the jurisdiction of the said court, as at the parish of Saint Pancras, in the county of Middlesex and within the jurisdiction of the said Central Criminal Court, did languish, and languishing did live, and then on the said last-mentioned day, in the year of our Lord , aforesaid, at the parish last aforesaid, in the county of Middlesex afore- said, and within the jurisdiction of the said Central Criminal Court, of the said last-mentioned mortal sickness, weakness, disease, disorder, and distemper did die ; and so the jurors aforesaid, upon their oath aforesaid, do say that the said P. B. D., the said J. A., in manner and form in this count men- tioned, feloniously did kill and slay against the peace, etc. Fifth Count. — Same as the fourth, except that it charged acts of omission only. CHAP. XXVni.] HOMICIDE. 293 Sixth Count. — Same as the fourth, but charging acts of commission only. Sevent\ Count. — And the jurors aforesaid, upon their oath aforesaid, do further present, that heretofore, to wit, on all the days and times hereinafter in this count mentioned, J. A. hereinafter in this count mentioned, was a poor, indigent, and destitute infant child, of very tender age, to wit, of the age of six years, and was totally unable to provide for or take care of himself, and during all the days and times in this count mentioned, was in a sick, feeble, and disordered state of health, and required for the purpose of enabling him to recover bodily health and strength, to be kept in a pure and healthy atmosphere, and some airy and well ventilated place or places ; and the jurors aforesaid, upon their oath aforesaid, do further present, that on and from the second day of Janu- ary, in the year of our Lord , until the fifth day of the same month, the said J. A. was in and under the care, charge, dominion, government, control, and keeping of the said P. B. D., in the said asylum, in the first count of tliis indictment mentioned, for reward to the said P. B. D. in that behalf, and that during all the time the said J. A. remained under such charge, care, dominion, government, custody, and control as in this count aforesaid, it was the duty of the said P. B. D. to furnish and provide the said J. A. with such healthy and wholesome shelter, lodging, and sleeping accommodation, as should be necessary to enable the said J. A. to recover his bodily health and strength. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said P. B. D., upon the said second day of January, in the year of our Lord , at the parish of Tooting aforesaid, and within the jurisdiction of the said court, in and upon the said J. A., feloniously did make an assault ; and the said P. B. D., then and there, and upon all the days in this count before-men- tioned, and during all the time whilst the said J. A. was so under the care, charge, dominion, government, control, and keeping of the said P. B. D., as in this count aforesaid, at the parish of Tooting aforesaid, and within the jurisdiction of the said court, feloniously and contrary to his duty in that 25* 294 HOMICIDE. [chap. XXVIII. behalf, did keep, confine, and detain the said J. A. in divers close, confined, and ill-ventilated rooms in the said asylum, and which, during all the time last aforesaid, were rendered and were impure, unhealthy, unwholesome, and unfit for the said J. A. to inhabit, by reason of their being overcrowded with a large, excessive, and injurious number of other persons, and also during divers nights during the time last aforesaid, feloniously did force, compel, and oblige the said J. A. to lie, remain, and be in a certain close and confined and ill-venti- lated bedroom, which also was on all the said nights impure, unwholesome, and unhealthy, by reason of divers impure, injurious, noxious, and pestilential vapors and exhalations in the said last-mentioned bedroom, then arising, existing, and being, by reason and by means of which said several feloni- ous acts and defaults of the said P. B. D., in this count men- tioned, the said J. A. afterwards, to wit, on the fifth day of January, in the year of our Lord , at the parish of Toot- ing aforesaid, in the county of Surrey aforesaid, and within the jurisdiction of the said Central Criminal Court, became and was mortally sick, weak, diseased, disordered, and dis- tempered in his body, of which said last-mentioned mortal sickness, weakness, disease, disorder, and distemper, the said J. A., on and from the day last aforesaid, until the sixth day of January in the same year, as well at the parish of Tooting aforesaid, and within the jurisdiction of the said Central Criminal Court, as at the parish of Saint Pancras, in the county of Middlesex aforesaid, and within the jurisdiction of the said Central Criminal Court, did languish, and languish- ing did live, and then on the said sixth day of January, in the year of our Lord , at the parish last aforesaid, and within the jurisdiction of the said court, of the said last-men- tioned mortal sickness, weakness, disease, disorder, and dis- temper, did die. And so the jurors aforesaid, upon their oath aforesaid, say, that the said P. B. D., the said J. A., in manner and form in this count aforesaid, feloniously did kill and slay, against the peace, etc. Eighth Count. — And the jurors aforesaid, upon their oath aforesaid, do further present, that heretofore and at the time CHAP. XXVni.] HOMICIDE. 295 of committing the offence by the said P. B. D., and during all the times hereinafter mentioned, J. A., hereinafter in this count mentioned, was a poor, indigent, and destitute child of a tender age, to wit, of the age of six years, and totally unable to support, provide for, and take care of himself ; and the said P. B. D., at his request, had the care, charge, posses- sion, and custody of the said J. A., and had undertaken the support and maintenance of the said J. A., and the finding and providing the said J. A. with reasonably sufficient and proper victuals, food, drink, board, clothing, and lodging, for reward to the said P. B. D. in that behalf, to wit, within the jurisdiction of the said Central Criminal Court. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said P. B. D., on the said twenty-eighth day of October in the year of our Lord , and on divers days and times aforesaid, to wit, and before the death of the said J. A., as hereinafter mentioned, at the parish of Tooting aforesaid, in the county of Surrey aforesaid, and within the jurisdiction of the said court, in and upon the said J. A. feloniously did make divers assaults, and knowingly, wilfully, and feloniously did put, place, keep, and lodge the said J. A. for divers long spaces of time, to wit, for and during the whole of those days and times in divers rooms and apart- ments, then and during all that time greatly and excessively overcrowded, overcharged, and filled to excess with divers and very many other infants and persons, and then also being in an iU-ventilated, impure, foul, unwholesome, unhealthy state, and in an unfit and improper state for the said J. A. to be put, placed, kept, and lodged in, and unfit for the habitation of man ; and also on the said days and times, at the place aforesaid, within the jurisdiction of the said court, wilfully and feloniously did neglect, omit, and refuse to give and ad- minister to, or find and provide the said J. A. with, and to suffer and permit to be given and administered to, or found and provided the said J. A. with reasonably sufficient and proper victuals, food, drink, and clothing necessary for the sustenance, support, and maintenance of the body of the said J. A., by means of which said placing, keeping, putting, and 296 HOMICIDE. [chap, xxvin. lodging the said J. A. in the said rooms and apartments, and also by means of which said neglecting, omitting, and refus- ing to give and administer to, or find and provide the said J. A. with such reasonably sufficient and proper victuals, food, drink, and clothing, as were necessary for the sus- tenance, support, and maintenance of the body of the said J, A., the said J. A. afterward?, to wit, on the fifth day of Janu- ary in the year of our Lord , at the place aforesaid, in the county aforesaid, and within the jurisdiction of the said court, became and was mortally sick and ill, weak, diseased, disordered, and distempered in his body, and of which said last-named mortal sickness, illness, weakness, disease, disor- der, and distemper, the said J. A. on and from the day and year last aforesaid, until, to wit, the sixth day of January in the year of our Lord , as well at the parish of Tooting aforesaid, and within the jurisdiction of the said court, as at the parish of Saint Pancras, in the county of Middlesex, and within the jurisdiction of the said court, did languish, and languishing did live, and then, to wit, on the day and year last aforesaid, at the parish last aforesaid, in the county last aforesaid, and within the jurisdiction of the said court, of the said last-named mortal sickness, illness, weakness, disease, disorder, and distemper, did die. And so the jurors aforesaid, on their oath aforesaid, do say, that the said P. B. D., the said J. A., in manner and form in this count aforesaid, feloni- ously did kill and slay ; against the peace, etc. Ninth Count. — And the jurors aforesaid, upon their oath aforesaid, do further present, that before and at the time of the committing of the offence by the said P. B. D., and dur- ing all the times hereinafter mentioned, J. A., hereinafter in this count mentioned, was a poor, indigent, and destitute child of a tender age, to wit, of the age of six years, and wholly unable to support, provide for, and take care of him- self; and the said P. B. D., at his request, had the care, charge, possession, and custody of the said J. A., and had undertaken the support and maintenance of the said J. A., and the finding and providing the said J. A. with reasonably sufficient and proper board and lodging, for reward to the CHAP. XXVni.] ' HOMICIDE. 297 said P. B. D. in that behalf, to wit, within the jurisdiction of the said Central Criminal Court. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said P. B. D., on the said twenty-eighth day of October in the year of our Lord , and on divers days and times afterwards, and before the death of the said J. A., as hereinafter mentioned, at the parish of Tooting aforesaid, in the county of Surrey aforesaid, and within the jurisdiction of the said court, in and upon the said J. A. feloniously did make divers assaults, and knowingly, wilfully, and feloniously did put, place, keep, and lodge the said J. A. for divers long spaces of time, to wit, for and during the whole of those days and times in divers rooms and apartments, then and during all that time greatly and ex- cessively overcrowded, overcharged, and fiUed to excess with divers and very many other infants and persons, and then also being in an iU-ventilated, impure, foul, unwholesome, and unhealthy state, and in an unfit and improper state for the said J. A. to be put, placed, kept, and lodged in. By means of which said putting, placing, keeping, and lodging the said J. A. in the said rooms and apartments, the said J. A. after- wards, to wit, on the fifth day of January in the year of our Lord , at the parish aforesaid, in the county aforesaid, and within the jurisdiction of the said court, became and was mortally sick and ill, weak, diseased, disordered, and distempered in his body, and of which said last-mentioned sickness, illness, weakness, disease, disorder, and distemper, the said J. A., on and from the day and year last aforesaid, until, to wit, on the sixth day of January in the year of our Lord , as well at the parish of Tooting aforesaid, and within the jurisdiction of the said court, as at the parish of Saint Pancras, in the county of Middlesex, and within the jurisdiction of the said court, did languish, and languishing did live, and then, to wit, on the day and yetir last aforesaid, at the parish last aforesaid, in the county last aforesaid, and within the jurisdiction of the said court, of the said last-men- tioned mortal sickness, illness, weakness, disease, disorder, and distemper, did die. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said P. B. D., the said J. A., 298 HOMICIDB, [chap. XXVIII. in manner and form in this count aforesaid, feloniously did kill and, slay ; against the peace, etc. 6. Indictment for murder by, inter alia, a series of beatings} The jurors, etc., upon their oath present, that Robert Cour- tice Bird, late of the parish of Buckland Brewer in the county of Devon, laborer, and Sarah, the wife of the said Robert Courtice Bird, late of the same parish, on the fifth day of November, in the year of our Lord , with force and arms, at the parish aforesaid, in the county aforesaid, in and upon one Mary Ann Parsons, unlawfully, feloniously, wilf fully, and of their malice aforethought, did make an as- sault, and that the said Robert Courtice Bird and Sarah his wife, with a certain stick, the said Mary Ann Par- sons in and upon the head, chest, shoulders, back, arms, legs, and thighs of the said Mary Ann Parsons, then and there fe- loniously, wilfully, and of their malice aforethought, did strike and beat, the said Robert Courtice Bird and Sarah his wife, giving to the said Mary Ann Parsons then and there, thereby, to wit, with the stick aforesaid, in and upon the head, chest, shoulders, back, arms, legs, and thighs of the said Mary Ann Parsons, divers mortal bruises, of which said mor- tal bruises the said Mary Ann Parsons, from the said fifth day of November, in the year aforesaid, until the fourth day of January, in the year of our Lord — ■- — , at the parish afore- said, in the county aforesaid, did languish, and languishing did live, on which said fourth day of January, in the year last aforesaid, the said Mary Ann Parsons at the parish aforesaid, in the county aforesaid, of the said mortal bruises died. And so the jurors aforesaid, upon their oath aforesaid, do say that the said Robert Courtice Bird and Sarah his wife, the said Mary Ann Parsons, in manner and form aforesaid, feloniously, wilfully, unlawfully, and of their malice aforethought, did kill and murder, against the peace, etc. • Regina v. Bird, 5 Cox, C. C. 1 ; 2 Eng. Law and Eq. Rep. 428 ; 1 Temple & Mew, C. C. 438, note. CHAP. XXVm.] HOMICIDE. 299 Second Count. — And the jurors aforesaid, upon their oath aforesaid, do further present, that the said Robert Courtice Bird, late of the parish of Buckland Brewer, in the county of Devon, and Sarah his wife, late of the same parish, on the fifth day of November, in the year of our Lord , and on divers other days and times between that day and the third day of January in the year of our Lord , to wit, on the first day of December in the year of our Lord , and the first day of January in the year of our Lord , respectively, with force and arms, at the parish aforesaid, in the county aforesaid, in and upon one Mary Ann Parsons, feloniously, wilfully, and of their malice aforethought, did make divers, to wit, ten assaults ; and that the said Robert Courtice Bird and Sarah his wife, with a certain stick, the said Mary Ann Parsons in and upon the head, chest, shoulders, arms, legs, and thighs of the said Mary Ann Parsons, then and there, to wit, at the several times aforesaid, at the parish aforesaid, and county aforesaid, feloniously, wilfully, wickedly, and of their malice aforethought, did strike and beat, the said Robert Courtice Bird and Sarah his wife, to the said Mary Ann Parsons then and there, thereby, to wit, with the said stick, at the several times aforesaid, at the parish aforesaid, in the county aforesaid, giving to the said Mary Ann Parsons in and upon the head, chest, shoulders, arms, legs, arid thighs of the said Mary Ann Parsons, divers, to wit, ten mortal bruises, of which said mortal bruises the said Mary Ann Parsons, firom the said fifth day of Novemljer, in the year aforesaid, and the several other days aforesaid, until the fourth day of January, in the year of our Lord , at the parish aforesaid, in the county aforesaid, did languish, and languishing did live, on which said fourth day of January, in the year last aforesaid, the said Mary Ann Parsons, at the parish aforesaid, in the county aforesaid, of the said mortal bruises died. And so the jurors aforesaid, on their oath aforesaid, do say that the said Robert Courtice Bird and Sarah his wife, the said Mary Ann Parsons, in manner and form aforesaid, feloniously, wil- fully, and of their malice aforethought, did kill and murder, against the peace, etc. 300 HOMICIDE. [chap. XXVIII. Third Count. — And the jurors aforesaid, upon their oaith aforesaid, do further present, that the said Robert Courtice Bird and Sarah his wife, on the fifth day of November in the year of our Lord , and on divers other days and times between that day and the third day of January in the year of our Lord , to wit, on the first day of December in the year of our Lord , and first day of January in the year of our Lord , respectively, with force and arms, at the parish aforesaid, in the county aforesaid, in and upon one Mary Ann Parsons, feloniously, wilfully, and of their malice aforethought, did make divers, to wit, ten assaults ; and that the said Robert Courtice Bird, with a certain stick, and the said Sarah the wife of the said Robert Courtice Bird, with a certain other stick, the said Mary Ann Parsons in and- upon the head, chest, shoulders, arms, legs, and thighs of the said Mary Ann Parsons then and there, to wit, at the several times aforesaid, at the parish aforesaid, and county aforesaid, fe- loniously, wilfally, and of their malice aforethought, did respectively strike and beat, the said Robert Courtice Bird, and Sarah his wife, respectively, to the said Mary Ann Par- sons then and there, thereby, to wit, at the several times afore- said, at the parish aforesaid, in the county aforesaid, with the several sticks aforesaid, at the parish aforesaid, in the county aforesaid, giving with this, that they respectively, then and thereby gave to the said Mary Ann Parsons in and upon the head, chest, shoulders, arms, legs, and thighs of the said Mary Ann Parsons, divers, to wit, ten mortal bruises, of which said mortal bruises the said Mary Ann Parsons, from the said fifth day of November in the year of our Lord aforesaid, and the several other days aforesaid, until the fourth day of January in the year of our Lord , at the parish aforesaid, in the county aforesaid, did languish, and languishing did live, on which said fourth day of January in the year last aforesaid, the said Mary Ann Parsons, at the parish aforesaid, and' county aforesaid, of the said mortal bruises so given as afore- said, died. And so the jurors aforesaid, upon their oath afore- said, do say, that the said Robert Courtice Bird and Sarah his wife, the said Mary Ann Parsons, in manner and. form CHAP. XXVni.] HOMICIDE. 301 aforesaid, by the means aforesaid, feloniously, wilfully, and of their malice aforethought, did kill and murder, against the peace, etc. Fourth Count. — And the jurors aforesaid, upon their oath aforesaid, do further present, that the said Robert Courtice Bird, and Sarah his wife, on the fifth day of November in the year of our Lord , and on divers other days and times between that day and the third day of January in the year of our Lord , with force and arms, at the parish aforesaid, in the county aforesaid, in and upon the said Mary Ann Parsons, feloniously, wilfully, and of their malice afore- thought, did make divers assaults ; and that the said Robert Courtice Bird and Sarah his wife, with a certain scourge, to wit, a scourge made of a certain leather thongs, to a certain stick afiixed, the said Mary Ann Parsons in and upon the head, chest, shoulders, back, arms, legs, and thighs of the said Mary Ann Parsons, thep and there feloniously, wilfully, and of their malice aforethought, did strike and beat, the said Robert Courtice Bird, and Sarah his wife, giving to the said Mary Ann Parsons then and there, thereby, to wit, with the scourge aforesEud, at the several times aforesaid, at the parish aforesaid, in the county aforesaid, in and upon the head, chest, shoulders, back, arms, legs, and thighs of the said Mary Ann Parsons, divers mortal bruises, of which' said mortal bruises the said Mary Ann Parsons, from the said fifth day of No- vember and the said other days" and times, until the said fourth day of January in the year of our Lord -, afore- said, at the parish aforesaid, in the county aforesaid, did lan- guish, and languishing did live, on which said fourth day of January in the year last aforesaid, the said Mary Ann Par- sons, at the parish aforesaid, in the county aforesaid, of the said several mortal bruises died. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said Robert Cour- tice Bird, and Sarah his wife, the said Mary Ann Parsons, in manner and form aforesaid, by the means aforesaid, feloni- ously, wilfully, and of their maljce aforethought, did kill and murder ; against the peace, etc. Fifth Count. — And the jurors aforesaid, upon their oath 26 302 HOMICIDE. [chap. XXVIII. aforesaid, do further present, that the said Robert Courtice Bird, and Sarah his wife, on the first day of January in the year of our Lord , with force and arms, at the parish aforesaid, in the county aforesaid, in and upon the said Mary Ann Parsons, feloniously, wilfully, and of their malice afore- thought, did make an assault; and that the said Robert Cour- tice Bird, with both his hands, and the said Sarah Bu-d, with both her hands, the said Mary Ann Parsons to and against the ground, then and there feloniously, wilfully, and of their mal- ice aforethought, did cast and throw, by which said casting and throwing the said Mary Ann Parsons to and against the ground, the said Robert Courtice Bird and Sarah Bird then and there gave' the said Mary Ann Parsons divers mortal bruises in and upon the head, stomach, sides, and back of the said Mary Ann Parsons, of which said mortal bruises the said Mary Ann Parsons, from the said first day of January in the year of our Lord , until the fourth day of January in the year of our Lord , to wit, then and there, at the parish aforesaid, in the county aforesaid, did languish, and languish- ing did live, on which said fourth day of January in the year last aforesaid, the said Mary Ann Parsons, at the parish afore- said, in the' county aforesaid, of the said mortal bruises died. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said Robert Courtice Bird and Sarah his wife, the said Mary Ann Parsons, in manner and form aforesaid, by the means aforesaid, felonioudy, wilfully, and of their meilice aforethought, did kiU and murder ; against the peace, etc. Sixth Count. — And the jurors aforesaid, upon their oath aforesaid, do further present, that the said Robert Courtice Bird, and. Sarah his wife, on the first day of January in the year of our Lord , with force and arms, at the parish aforesaid, in the county aforesaid,' in and upon the said Mary Ann Parsons, feloniously, wilfully, and of their malice afore- thought, did make an assault ; and that the said Robert Courtice Bird then and there, with both his hands, and the said Sarah, the wife of the gaid Robert Courtice Bird, then and there, with both her hands, the said Mary Ann Parsons to and against the ground then and there feloniously, wilfully. CHAP. XXVni.] HOMICIDE. 303 and of their malice aforethought, respectively, did then and there cast and throw, and that the said Robert Courtice Bird then and there, with both the feet of the said Robert Courtice Bird, and the said Sarah, the wife of the said Robert Courtice Bird, then and there, with both the feet of the said Sarah, whilst the said Mary Ann Parsons being so then and there cast and thrown to and against the ground, then was then and there upon the ground, the said Mary Ann Parsons in and upon the head, stomach, back, and sides of the said Mary Ann Parsons, then and there feloniously, wilfully, and of their malice aforethought, did respectively then and there strike, beat, and kick, the said Robert Courtice Bird, and Sarah his wife, then and there respectively, as well by the casting and throwing of the said Mary Ann Parsons to the ground as aforesaid, as also by the striking, beating, and kicking the said Mary Ann Parsons in and upon the head, stomack,^back, and sides of the said Mary Ann Parsons, in manner and form aforesaid, while on the ground as aforesaid, then and there thereby giving to the said Mary Ann Parsons divers, to wit, twenty mortal bruises in and upon the head, stomach, back, and sides of the said Mary Ann Parsons, of which said mor- tal bruises so caused as aforesaid, the said Mary Ann Par- sons, from the said first day of January in the year of our Lord , Tintil the fourth day of January in the year of our Lord , then and there, to wit, at the parish aforesaid, in the county aforesaid, did languish, and languishing did live, on which said fourth day of January in the year last afore- said, the said Mary Ann Parsons, at the parish and in the county aforesaid, of the said mortal bruises so given as afore- said, died. And so the jurors aforesaid, upon their oath afore- said, do say, that the said Robert Courtice Bird and Sarah his wife, the said Mary Ann Parsons, in manner and form aforesaid, by the means aforesaid, feloniously, wilfuUy, and of their malice aforethought, did kill and murder ; against the peace, ^c. 304 HOMICIDE. [chap. XXVIH. 7. For mv/rder by striking with an axe?- The jurors, etc., upon their oath present, that John L. Chapman, late of Sherborne, in the county of Middlesex, laborer, on the fourteenth day of September in the year of our Lord one thousand eight hundred and fifty-three, at Sher- borne aforesaid, in the county aforesaid, with force and arms, in and upon one Reuben Cozzens, did make an assault,^ and that the said John L. Chapman, with a certain axe, the said Reuben Cozzens, in and upon the back side of the head of the said Reuben Cozzens, then and there feloniously, wilfully, and of his malice aforethought, did strike and bruise, giving to the said Reuben Cozzens, then and there, with the axe , aforesaid, in and upon the said back side of the head of the said Rfeuben Cozzens, one mortal wound, of which said mor- tal wound the said Reuben Cozzens then and there instantly died. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said John L. Chapman, the said Reuben Cozzens then and there, in manner and form aforesaid, feloni- ously, wilfully, and of his malice aforethought, did kill and murder ; against the peace of said Commonwealth, and con- trary to the form of the statute in such case made and pro- vided. 8. For mv/rder by throwing stones? The jurors, etc., upon their oath present, that Joseph Dale, late o^ etc., laborer, John Piatt, late of, etc., laborer, and Charles Taylor, late of, etc., laborer, on, etc., with force and arras, at, etc., in and upon one William Wood, feloniously, wilfully, and of their malice aforethought, did make an > Commonwealth v. Chapman, The Monthly Law Reporter, wl. 7, n. s p. 155. ' See ante, p. 253. » Rex V. Dale, 1 Moody, C. C. 5 ; ante, p. 247, 248. CHAP. XXVin.] HOMICIDE. • 305 assault, and that the said Joseph Dale, John Piatt, and Charles Taylor, certain stones in and upon the back part of the head of the said William Wood then and there feloni- ously, wilfully, and of their malice aforethought, did cast and throw, and that the said Joseph Dale, John Piatt, and Charles Taylor, with the stones aforesaid, so as aforesaid cast and thrown, the aforesaid William Wood, in and upon the back part of the head of the said William Wood then and there feloniously, wilfully, and of their malice aforethought did strike, penetrate, and wound, feloniously, wilfully, and of their malice aforethought, then and there giving to the said William Wood, by the casting and throwing of the stones aforesaid in and upon the back part of the head of the said William Wood one mortal wound, bruise, fracture, and contu- sion, of the breadth of one inch, and of the depth of half an inch, of which said mortal wound, bruise, fracture, and con- tusion, the said William Wood then and there instantly died. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said Joseph Dale, John Piatt, and Charles Taylor, the said William Wood, in the manner and by the means aforesaid, feloniously, wilfully, and of their malice afore- thought, did kill and murder ; against the peace, etc. 9. For murder by causing premature birth?- The jurors, etc., upon their oath present, that before and at the time of the committing of the felony and murder here- inafter next mentioned, one Sarah Henson was then q^ick with a certain male child ; and that Ann, the wife of Joseph Wiest, late of, etc., well knowing the said Sarah Henson to be quick with the said male child as aforesaid, and feloniously, wilfully, and of her malice aforethought, devising, contriving, and intending, feloniously, unlawfully, wickedly, and wilfully to cause and procure the said Sarah Henson to bring forth from and out of her womb the said male child, with which } Kegina v. West, 2 Carrington & Kirwan, 784 ; 2 Cox, C. C. 500. 26* 306 - HOMICIDB. [chap. XXVIII. she was so quick as aforesaid, and to cause and procure the said male child to be prematurely brought forth from and out of the womb of the said Sarah Henson, and thereby, and by means thereof, the said male child, feloniously, wil- fully, and of her malice aforethought, to kill and murder, on, etc., with force and arras, at, etc., in and upon the said male child so quick in the womb of the said Sarah Henson as aforesaid then and there being, feloniously, wilfully, and of her malice aforethought, did make an assault, and that the said Ann West then and there feloniously, wilfully, and of her malice aforethought, did put, place, and force the right hand' of the sSlid Ann West into the private parts of the said Sarah Henson, and upward into the womb of the said Sarah Henson, and a certain pin into the private parts, and up into the womb of the said Sarah Henson then and there feloniously, wilfully, and of her malice aforethought, did put, place, and force, and the said Ann West, by such putting, placing, and forcing the right hand of the said Ann West into the private parts of the said Sarah Henson as aforesaid, and up and into the womb of the said Sarah Hen- son as aforesaid, and by such putting, placing, and forcing the said pin into the private parts, and up into the womb of the said Sarah Henson as aforesaid, the said Ann West, afterwards, to wit, on, etc., with force and arms, at, etc., feloniously, wilfully, and of her malice aforethought, did cause and procure the said Sarah Henson to bring forth the said male child from and out of the womb of the said Sarah Henson as aforesaid, and did then and there feloniously, wil- fully, and of her malice aforethought, cause and procure the said male child to be prematurely born and brought forth alive from and out of the womb of the said Sarah Henson as aforesaid, and that the said male child, by means of being so prematurely born and brought forth alive from and out of the womb of the said Sarah Henson as aforesaid, then and there became and was mortally weakened, debilitated, and ema- ciated in his body, of which said mortal weakness, debility, and emaciation of the body of the said male child, the said male child for the space of five hours, on, etc., at, etc., did languish, CHAP. XXVni.] HOMICIDE. 307 and languishing did live, and then, to wit, on the said last- mentioned day, in the year aforesaid, the said male child, at, etc., of the said mortal weakness, debility, and emaciation of his body aforesaid, did die. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said Ann West, the said male child, in manner and form aforesaid, feloniously, wil- fully, and of her malice aforethought, did kill and murder ; against the peace, etc. There were three other counts, in two of w^iich, the state- ment of an assault upon the child was omitted. 10. For murder by throwing upon the ground, beating, etc.^ The jurors, etc., upon their oath present, that Robert Mos- ley, late of the parish of Wakefield in the county of York, laborer, and Benjamin Morrill, late of the same place, laborer, on the thirtieth day of September, in the year of our Lord , with force and arms, at the parish aforesaid, in the county aforesaid, in and upon one Jonathan Depledge, felo- niously, wilfully, and of their malice aforethpught, did msike an assault, and that the said Robert Mosley and Benjamin Morrill, then and there feloniously, wiLfally, and of their mal- ice aforethought, did with great force and violence, pull, push, cast, and throw the said Jonathan Depledge, down unto and upon the ground there, and that the said Robert Mosley and Benjamin Morrill, with both the hands and feet of the said Robert Mosley and Benjamin Morrill, then and there, and while the said Jonathan Depledge was so lying and being upon the ground, the said Jonathan Depledge, in and upon the head, stomach, breast, belly, back, and sides of the said Jonathan Depledge, then and there feloniously, wilfully, and of their malice aforethought, divers times with great force and violence, did strike, beat, and kick, and that the said Robert Mosley and Benjamin Morrill, with both the hands, feet, and knees of the said Robert Mosley and Benjamin Mor- rill, and each of them, then and there, 'and while the said ' Kex V. Mosley, 1 Moody, C. C. 98 ; ante, p. 248, and note. 308 HOMICIDE. [chap. XXVIII. Jonathan Depledge was so lying and being upon the ground as aforesaid, the said Jonathan Depledge in and upon the belly, head, stomach, and sides of the said Jonathan Depledge, then and there feloniously, wilfully, and of. their malice afore- thought, did with great force and violence strike, push, press, and squeeze, giving to the said Jonathan Depledge, then and there as well by the pulling, pushing, casting, and throwing of the said Jonathan Depledge down unto and upon the ground as aforesaid, and by the striking, beating, and kicking of the said Jonathan Depledge, whilst he was so lying and being upon the ground as aforesaid, in and upon the head, stomach, breast, belly, back, and sides of the said Jonathan Depledge as aforesaid, as also by the striking, pushing, press- ing, and squeezing of the said Jonathan Depledge, whilst the said Jonathan Depledge was so lying and being upon the ground as aforesaid, in and upon the belly, breast, stomach, and sides of the said Jonathan Depledge, with the hands, knees, and feet of the said Robert Mosley and Benjamin MorriU, in manner aforesaid, several mortal bruises, lacera- tions, and wouqds, in and upon the belly, breast, stomach, and sides of the said Jonathan Depledge, of which said sev- eral mortal braises, lacerations, and wounds the said Jona- than Depledge, from the said thirtieth day of September, in the year of our Lord , until the tenth day of October, in the same year, at the parish aforesaid, in the county aforesaid, did languish, and languishing did live, on which tenth day of October, in the year aforesaid, the said Jonathan Depledge at the parish aforesaid, in the county aforesaid, of the said several mortal bruises, lacerations, and wounds, died. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said Robert Mosley and Benjamin Morrill, the said Jona- than Depledge in manner and form and by the means afore- said, feloniously, wilfully, and of their malice aforethought, did kill and murder ; against the peace, etc. CHAP. XXVin.] HOMICIDE. 309 11. For mwder, by stabbing with a knife?- The jurors, etc., upon their oath present, that Abner Rogers, the younger of that name, late of Charlestown, in the county of Middlesex, and Commonwealth aforesaid, laborer, and a convict and prisoner, under a sentence of imprisonment and hard labor, in the State prison of said Commonwealth, situated in Charlestown, in said county of Middlesex, which prison, and the precincts thereof, by force of the statute in such case made and provided, are deemed by law, for the purpose of all judicial proceedings concerning crimes and offences committed within said prison and its precincts, to be within and a part of the county of Suffolk, as weU as the county of Middlesex, and which sentence was lawful, unre- versed, unexpired, and in full force, with force and arms, on the fifteenth day of June in the year of our Lord , at the State prison aforesaid, and within the precincts thereof, at Charlestown aforesaid, and in the county of Suffolk, and ^thin the criminal jurisdiction of the court, as aforesaid, by force of said statute, in and upon one Charles Lincoln, the younger of that name, then and there being the warden of the said State prison, lawfully appointed and qualified, and being then and there in the due and lawful exercise and discharge of the duties of his said ofiice of warden as aforesaid, feloni- ously, wilfully, and of his malice aforethought, did make an assault; and that the said Abner Rogers, with a certain knife, commonly called a shoe knife, in and upon the back and neck of the said Charles Lincoln, then and there warden as aforesaid, did then and there in said prison, and within the precincts thereof, at Charlestown aforesaid, in said county of Suffolk as aforesaid, and within the criminal jurisdiction of this court, on said fifteenth day of said June, with force and arms, feloniously, wilfully, and of his malice aforethought, the said Charles Lincoln three times did strike, thrust, stab, pene- trate, and wound, giving the said Lincoln then and there, with the knife aforesaid, in and upon the back, neck, and » Commonwealth v. Rogers, Bigelow & Bemis, Keport, 1. 310 HOMICIDE. [chap. XXVIH, throat of the said Lincoln, two mortal wounds, to wit, one mortal wound, of the length of two inches, of the breadth of one inch, and of the depth of three inches, in and upon the back of the said Lincoln, near the shoulder blades and the spine of his back ; and one other mortal wound in and upon the left side of the neck and throat of the said Lincoln, of the length of three inches, of the breadth of one inch, and of the depth of three inches, of which said mortal wounds the said Charles Lincoln then and there, in the precincts of said prison, in the county of Suffolk as aforesaid, and within the criminal jurisdiction of this court, instantly died. And so the jurors aforesaid, upon their oath aforesaid, do say and pre- sent, that the said Abner Rogers, the said Charles Lincoln then and there, on the said fifteenth day of June in the year of our Lord , in the State prison aforesaid, and within the precincts thereof, at Charlestown aforesaid, in the county of Suffolk as aforesaid, and within the criminal jurisdiction of this court, did, in manner and form aforesaid, feloniously, wil- fully, and of his malice aforethought, kill and murder ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. 12. For murder by selling poisonous berries as good and wholesome food?^ The jurors, etc., upon their oath present, that J. H. late of the parish of St. Mary, Whitechapel, in the county of Mid- dlesex, and within the jurisdiction of the Central Criminal Court, laborer, on the fifteenth day of August in the year^f our Lord , with force and arms, at the parish aforesaid, in the county aforesaid, and within the jurisdiction of the said court, feloniously, knowingly, wilfully, and of his malice aforethought, gave and administered to the said T. P., with intent that the said T. P. should take, eat, and swallow down the same, a large quantity of certain noxious, destructive, and poisonous berries, called berries of the deadly nightshade, to ' 2 Cox, C. C. Appendix, p. iv. CHAP. XXVni.] HOMICIDE. 311 wit, the quantity of one pint of the said berries, as and for good and wholesome food and aliment for the said T. P., and that the said T. P., not knowing the said berries so given and administered to him as aforesaid to be noxious, destructive, and poisonous, but believing the said berries to be good and wholesome food and aliment for him, did then and there, to wit, on the day and in the year aforesaid, at the parish afore- said, in the county aforesaid, and within the jurisdiction of the said court, take, eat, and swallow down a large quantity, to wit, the quantity of a pint of the said berries, by means whereof the said T. P. then and there became, and then and there was mortally sick and distempered in his body; and the said T. P. of the poison aforesaid so by him taken, eaten, and swallowed down as aforesaid, and of the mortal sickness and distemper occasioned thereby, from the said fifteenth day of August in the year aforesaid, until the seventeenth day of August in the same year, at the parish aforesaid, in the county aforesaid, and within the jurisdiction of the said court, did lan- guish, and languishing did live, on which said seventeenth day of August in the .year aforesaid, the said T. P., at the parish aforesaid, in the county aforesaid, and within the jurisdiction of the said court, of the poison aforesaid, and of the mortal sickness and distemper of his body aforesaid, did die. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said J. H., the said T. P., in manner and by the means aforesaid, feloniously, wilfully, and of his malice aforethought, did kill and murder ; against the peace, etc. There was a second count, only differing from the first, in stating the berries to have been " of a plant called atropa bel- ladonna." 13. First Count. — For murder by stabbing with a knife?- The jurors, etc., upon their oath present, that John W Webster, late of Cambridge, in the county of Middlesex, gen- tleman, on the twenty-third day of November in the year of ' Commonwealth v. Webster, Bemis's Report, p. 1, 2, 3 ; 5 Gushing, p. 81, 295. 312 HOMiciDB. [chap, xxvni. our Lord , at Boston, in the county of Suffolk, in and upon one George Parkman, feloniously, wilfully, and of his malice aforethought, did make an assault ; and that the said John W. "Webster, with a certain knife, the said George Park- man, in and upon the left side of the breast of the said George Parkman, then and there feloniously, wilfuUy, and of his malice aforethought, did strike, cut, stab, and thrust, giv- ing to the said George Parkman, then and there with the knife aforesaid, in and upon the left side of the breast of the said George Parkman, one mortal wound of the length of one inch, and of the depth of three inches ; of which said mortal wound, the said George Parkman then and there in- stantly died. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said John W. "Webster, the said George Parkman, in manner and form aforesaid, then and there feloniously, wilfully, and of his malice aforethought, did kiU and murder; against the peace of the Commonwealth aforesaid, and contrary to the form of the statute in such case made and provided. Second Count. — For murder, by inflicting a blow on the head with a hammer. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said John W. Webster, at Bos- ton aforesaid, in the county aforesaid, on the twenty-third day of November in the year of our Lord , in and upon the said George Parkman, feloniously, wilfully, and of his malice aforethought, did make an assault ; and that the said John "W. "Webster, then and there, with a certain ham- mer, the said George Parkman in and upon the head of the said George Parkman, then and there feloniously, wilfully, and of his malice aforethought, did strike, giving unto the said George Parkman, then and there with the hammer afore- said, by the stroke aforesaid, in manner aforesaid, in and upon the head of the said George Parkman, one mortal wound ; of which said mortal wound the said George Park- man then and there instantly died. And so the jurors afore- CHAP, xxvrn.] homicide. 313 said, upon their oath aforesaid, do say, that the said John W. Webster, the said George Parkman, in manner and form aforesaid, then and there feloniously, wilfully, and of his malice aforethought, did kill and murder ; against the peace of said Commonwealth, and contrary to the form of the stat- ute in such case made and provided. Third Count. — For murder, by striking; kicking, etc. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said John W. Webster, at Boston aforesaid, in the county aforesaid, on the twenty-third day of November in the year of our Lord , in and upon the body of one George Parkman, feloniously, wilfully, and of his malice aforethought, did make an assault ; and that the said John W. Webster, then and there, with his hands and feet, the said George Parkman, feloniously, wil- fully, and of his malice aforethought, did strike, beat, and kick, in and upon the head, breast, back, belly, sides, and other parts cJf the body of the said George Parkman ; and did, then and there, feloniously, wilfully, and of his malice aforethought, cast and throw the said George Parkman down, unto, and upon the floor, with great force and violence there, giving unto the said George Parkman then and there, as well by the beating, striking, and kicking of the said George Parkman, in manner and form aforesaid, as by the casting and throwing of the said George Parkman down, as aforesaid, several mortal strokes, wounds, and bruises, in and upon the head, breast, back, belly, sides, and other parts of the body of the said George Parkman ; of which said mortal strokes, wounds, and bruises, the said George Parkman then and there instantly died. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said John W. Webster, the said George Parkman, in manner and form aforesaid, then and there feloniously, wilfully, and of his malice aforethought, did kill and murder; against the peace of said Common- wealth, and contrary to the form of the statute in such case made and provided. 27 314 HOMICIDE. [chap, xxvni. Fourth Count. — For mwrder, in some way and manner, etc., unknown} And the jurors aforesaid, upon their oath aforesaid, do further present, that the said John W. Webster, at Bos- ton aforesaid, in the county aforesaid, in a certain build- ing known as the Medical CoUege, there situate, on the twenty-third day of November in the year of our Lord , in and upon one George Parkman, feloniously, wilfully, and of his malice aforethought, did make an assault; and 'the said George Parkman, in some way and manner, and by some means, instruments, and weapons, to the jurors miknown, did then and there feloniously, wilfuUy, and of malice afore- thought, deprive of life ; so that the said George Parkman, then and there died. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said John W. Webster, the said George Parkman, in the manner, and by the means afore- said, to the said jurors unknown,J;hen and there, feloniously, wilfully, and of his malice aforethought, did kill»and murder ; against the peace of the Commonwealth aforesaid, and con- trary to the form of the statute in such case made and pro- vided. 14. For murder, by shooting with a pistol. The jurors, etc., upon their oath present, that C. D. late of B., etc., laborer, on the first day of June in the year of our Lord , with force and arms, at B. aforesaid, in the county aforesaid, in and upon one E. F. feloniously, wilfully, and of his malice aforethought, did make an assault ; and that the said C. D. a certain pistol, then and there charged with gun- powder and one leaden bullet, then and there feloniously, wil- fully, and of his malice aforethought, did discharge and shoot off, to, against, and upon the said E. F., and that the said C. D., with the leaden bullet aforesaid, out of the pistol afore- ' Ante, p. SUi, 245, and note. CHAP. XXVIII.] HOMICIDE. 315 said, then and there, by the force of the gunpowder aforesaid, by the said C. D. discharged and shot off as aforesaid, then and there feloniously, wilfully, and of his malice aforethought, did strike, penetrate, and wound the said E. F. in and upon the right side of the belly of the said E. F., near the right hip of the sa.id E. F., giving to the said E. F. then and there, with the leaden bullet aforesaid, so as aforesaid discharged and shot out of the pistol aforesaid, by the said C. D. in and upon the right side of the belly of the said E. F., near the said right hip of the said B. F., one mortal wound, of the depth of four inches, and of the breadth of half an inch ; of which said mortal wound the said E. F. then and there in- stantly died. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said C. D. the said E. F., in the manner and by the means aforesaid, feloniously, wilfuUy, and of his malice aforethought, did kill and murder; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. 15. For murder, by cutting the throat. The jurors, etc., upon their oath present, that C. D. late of B., etc., spinster, on the first day of June in the year of our Lord , with force and arms, at B. aforesaid, in the county aforesaid, in and upon one E. F., feloniously, wilfully, and of her malice aforethought, did make an assault ; and that the said C. D., with a certain knife, the throat of the said E. F. feloniously, wilfully, and of her malice aforethought, did strike and cut ; and that the said C. D., with the knife aforesaid, by the striking and cutting aforesaid, did then and there give to the said E. F., in and upon the said throat of the said E. F., one mortal wound, of the length of three inches, and of the depth of two inches ; of which said mortal wound, the said E. F. from the said first day of June in the year aforesaid, to the first day of July in the year afqresaid, at B. aforesaid, in the county aforesaid, did languish, and lan- guishing did live ; on which said first day of July aforesaid, in the year aforesaid, at B. aforesaid, in the county aforesaid, 316 HOMICIDE. [chap. XXVIH. the said E. F., of the said mortal wound, died. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said C. D. the said E. F., in manner and form aforesaid, then and there feloniously, wilfully, and of her malice aforethought, did kill- and murder; against the peace of said Common- wealth, and contrary to the form of the statute in such case made and provided. 16. For murder, by throwing a knife. The jurors, etc., upon their oath aforesaid, present, that C. D. late of, etc., laborer, on the first day of June in the year of our Lord , with force and arms, at B. aforesaid, in the county aforesaid, in and upon one E. F. feloniously, wilfuUy, and of his malice aforethpught, did make an assault; and that the said C. D., with a certain large knife, at and against the said E. F. then and there feloniously, wilfully, and of his mal- ice aforethought, did cast and throw, and the said E. F., with the knife aforesaid, so cast and thrown as aforesaid, then and there feloniously, wilfully, and of his malice aforethought, did strike and stab, and that the said C. D., with the knife aforesaid, so cast and thrown as aforesaid, in and upon the left side of the body of the said E. F. then and there feloni- ously, wilfully, and of his malice aforethought, did strike and stab, and that the said C. D., with the knife aforesaid, so cast and thrown as aforesaid, did then and there feloniously, wil- fully, and of his malice aforethought, give to the said E. F., in and upon the left side of the body of the said E. F. one mortal wound, of the breadth of one inch, and of the depth of three inches ; of which said mortal wound, the said E. F. then and there instantly died. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said C. D. the said E. F., in manner and form aforesaid, then and there fe- loniously, wilfully, and of his malice aforethought, did kill and murder ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. CHAP. XXVIII.J HOMICIDE. 317 « 17. For murder^ by casting a stone. The jurors, etc., upon their oath present, that C. D. late of, etc., laborer, on the first day of June in the year of our Lord , with force and arms, at B. aforesaid, in the county aforesaid, in and upon one E, F. feloniously, wilfully, and of his malice aforethought, did make an assault ; and that the said C. D. a certain stone, in and upon the right side of the head, near the right temple of the said E. F., then and there feloniously, wilfully, and of his malice aforethought, did cast and throw ; and that the said C. D., with the stone aforesaid, so as aforesaid cast and thrown, the aforesaid E. F. in and upon the right side of the head, near the right temple of the said E. F. then and there feloniously, wilfully, and of his mal- ice aforethought, did strike, penetrate, and wound, giving to the said E. F., by the easting and throwing of the stone afore- said, in and upon the right side of the head, near the right temple of the said E. F. one mortal wound of the length of one inch, and of the depth of one inch ; of which said mor- tal wound, the said E. F., from the said day of in the year aforesaid, to the day of in the year afore- said, at B. aforesaid, in the county aforesaid, did languish, and languishing did live ; on which said day of in the year aforesaid, at B. aforesaid, in the county aforesaid, the said E. F. of the mortal wound aforesaid died. And so the jurors aforesaid, upon their oath aforesaid, do» say, that the said C. D. the said E. F., in manner and form aforesaid, feloniously, wilfully, and of his malice aforethought, did kill and murder; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. 18. For murder, by striking with a poker. The jurors, etc., upon their oath present, that C. D. late of, etc., laborer, on the first day of June in the year of our Lord , with force and arms, at B. aforesaid, in the county 27* 318 HOMICIDE. [chap. XXVIII. aforesaid, in and upon one E. F. feloniously, wilfully, and of his malice aforethought, did make &,n assault ; and that the said C. D. then and there, with a certain iron poker, the said E. F., in and upon the back part of the head of the said E. F. then and there feloniously, wilfully, and of his malice aforethought, did strike, giving unto the said E. F. then and there, with the said iron poker, by the stroke aforesaid, in manner aforesaid, in and upon the back part of the head of the said E. F. one mortal wound, of the length of three inches, and of the depth of one inch ; of which said mortal wound, the said E. F., on the said day of at B. aforesaid, in the county aforesaid, did languish, and languishing did live; on which same day of aforesaid, in the year aforesaid', at B. aforesaid, in the county aforesaid, the said E. F. of the said mortal wound died. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said C. D. the said E. F., in manner and form aforesaid, feloniously, wilfully, and of his malice aforethought, did kill and murder ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. 19. For mwder, by beating with fists, and kicking on the ground. The jurors, etc., upon their oath present, that C. D. late of, etc., laborer, on the first day of June in the year of our Lord , with force and arms, at B. aforesaid, in the county aforesaid, in and upon one E. F. feloniously, wilfully, and of his malice aforethought, did make an assault ; and that the said C. D. then and there feloniously, wilfully, and of his malice aforethought, did strike, beat, and kick the said E. F. with his hands and feet, in and upon the head, breast, back, belly, sides, and other parts of the body of the said E. F., and Rex V. Forsyth, RusseU & Ryan, C. C; 273. 29 338 LARCENY. [chap. XXXI. held that no judgment could be legally rendered against him.^ It is an indispensable rule with respect to the form of indictments for larceny, that the name of the person in whom •the ownership of the goods was, at the time of the felony, should be alleged. Where goods are stolen out of the posses- sion of a bailee, they may be described in the indictment as the property of the bailor or of the bailee,^ although the goods were never in the real owner's possession, but in that of the bailee merely ;3 as, goods left at an inn ;* or intrusted to a person for safe-keeping ; ® or to a carrier to carry ; * and linen sent to a laundress to wash.^ Goods pawned and the like may be laid to be the goods and chattels of the person to whom they are so intrusted, etc., or of the owner, at the option of the pleader.^ So where the indictment alleged cattle to be the property of a person, who, it appeared in evidence, was merely the agistor, and not the actual owner, it was held to be suificient.^ Where A. had taken a house, in which B., his relation, carried on a trade for the benefit of A. and his fam- ily, having himself neither a share in the profits nor a salary, but having authority to sell any part of the stock, and to buy goods for the shop, accounting to A., it was held, that B. was ' Hope V. The Commonwealth, 9 Metcalf, 134. See Clifton v. The State, 5 Blackford, 224. « 2 Hale, P. C. 181 ; The State v. Somerville, 21 Maine, 14 ; Yates v. The State, 10 Yerger, 549. . " Kex V. Kemnant, Eussell & Kyan, C. C. 136 ; Kex v. Wymer, 4 Car- rington & Payne, 391. * Rex V. Todd, 2 East, P. C. 658. * Kex V. Taylor, 1 Leach, C. C. (4th London ed.), 356 ; Kex v. Statham, 1 Leach, C. C. (4th London ed.), 356. And see Kegina v. Ashley, 1 Car- rington & Kirwan, 188. ■" Kex V. Deakin, 2 East, P. C. 653. Bank-notes stolen from the mail may be laid as the property of the person forwarding them. The United States 1-. Burroughs, 3 McLean, 405. ' Rex V. Packer, 2 East, P. C. 653 ; 1 Leach, C. C. (4th London ed.), 357, note. ; * Archbold, Crim,Pl. (London ed. 1853), 261. " Rex V. Woodward, 2 East, P. C. 653. CHAP. XXXI.] LAKCENY. 339 a bailee of the goods of the shop, and that they might be laid as his property.^ And although the goods have in fact been parted with by the bailee,- but under a mistake, as his special property in them is not thereby divested, if a larceny of them be then committed, they may stiU be laid to be the property of such bailee.2 Where a bailor steals his own goods from his bailee, they must be described as the goods of the bailee.^ The property must not, however, be laid in one who has neither the actual nor the constructive possession of the goods.* Thus, if it appear that the person named as owner is merely servant to the real owner, the defendant must be acquitted ; for the servant has not a special property in the goods, the possession of the servant being the possession of the master.^ Where, however, the money has never been in the possession of the master, as where it was received by the servant for him, but he is robbed of it before his arrival home, it should be laid as the property of the servant, not of the master.^ So where the person named as owner is a married woman, the defendant must be acquitted, because, in law, the goods are the property of the husband, even though she be living apart firom him, upon an income arising from prop- erty vested in trustees for her separate use ; because the goods cannot be the property of the trustees, nor can they be the property of the wife, for in law she can have no property.'^ But where goods are stolen from a feme sole, and before ' Kegina v. Bird, 9 Carrington & Payne, 44. 'Regina «. Vincent, 2 Denison, C. C. 464; 5 Cox, C. C. 537; 9 Eng. Law and Eq. Rep. 548. ' Rex V. Wilkinson, Russell & Ryan, C. C. 470 ; Rex v. Bramley, Russell & Ryan, C. C. 478. * Rex V. Adams, RusseU & Ryan, C. C. 225. * Rex V. Hutchinson, Russell & Ryan, C. C. 412 ; 2 East, P. C. 652. ' Regina v. Rudick, 8 Carrington & Payne, 237. ' Rex V. French, Russell & Ryan, C. C. 491 ; Rex v. Roberts, 7 Carring- ton & Payne, 485; Regina w. Sallows, 2 Cox, C. C. 63; 1 Hale, P. C.'513;- Archbold, Grim. PI. (London ed. 1853), 262. And see Rex v. Wilford, Rus- sell & Ryan, C. C. 517. 340 LARCENY. [chap. XXXI. indictment she married, it was held, that describing her as the owner of the goods by her maiden name was sufficient.^ Goods let with a ready furnished lodging must be described as the goods of the lodger, and not as the goods of the orig- inal owner ; for the owner neither has nor is entitled to the possession, and cannot maintain trespass.^ Goods seized under a writ oifi.fa. may be described as the property of the party against whom the writ issued ; for though they are in custodid legis, the original owner continues to have a prop- erty in them until they are sold.^ So if A. steal the goods of B., and C. steal the same goods from A., the goods may be described as the goods of either ; of A., because he had the possession, and of B., because the property of the true owner is not divested by the tortious taking.* Clothes or other nec- essaries furnished by a father to his child may, it seems, be laid to be the property either of the father or of the child, par- ticularly if the child be of tender age ; ^ but it is safer perhaps to allege them to be the property of the child.® A shroud stolen from a corpse must be laid to be the property of the executors, or of the person who buried the deceased, and not of the deceased himself.'^ The coffins in which the dead have been interred are also to be laid as the goods of the executors.^ "Where goods are the property of several, they must be so described in the indictment. But it is not necessary that ' Rex V. Turner, 1 Leach, C. C. (4th London ed.) 636. ' Kex V. Belstead, Russell & Ryan, C. C. 441 ; Rex v. Brunswick, 1 Moody, C. C. 26. ' Rex V. Eastall, 2 Russell, Crim. Law, 158. ' Rex ti. Wilkins, 1 Leach, C. C. (4th London ed.), 522, 623 ; Ward v. The People, 3 HiU, (N. Y.), 396. 6 Rex V. Hayne, 12 Coke, Rep. 113; 2 East, P. C. 654 ; Archbold, Crim. PI. (London ed. 1863), 262. « Archbold, Crim. PI. (London ed. 1853), 262. See Rex v. Forsgate, 1 Leach, C. C. (4th London ed.), 463, 464, note ; Regina v. Hughes, CarrLng- ton & Marshman, 593. '• Rex V. Hayne, 12 Coke, Rep. 113, h. ; 1 Hale, P. C. 616 ; 1 Gabbett, Crim. Law, 601. See Wonson v. Sayward, 13 Pickering, 402. ' 1 East, P. C. 652; 1 Gabbett, Crim. Law, 601. CHAP. XXXI.] LAKCENY. 341 the person in whom the ownership is laid,.should have the strict legal property, as where the possession and legal right is in one, and an equitable ownership in another.^ 1. For simple larceny at common law. * The jurors, etc., upon their oath present, that C. D., late of B., in the county of S., laborer, on the first day of June in the year of our Lord , with force and arms, at B., afore- said, in the county aforesaid, one silver tankard, of the value of fifty dollars, of the goods and chattels of one A. B., then and there in the possession of the said A. B.^ being found, feloniously did steal, take, and carry away ; against the peace of "said Commonwealth, and contrary to the form of the statute in such case made and provided. 2. For larceny by the cashier of a bank. Mass. St 1846, ch. 171, § 1. The jurors, etc., upon tiieir oath present, that A. B., late of, etc., on the first day of June in the year of our Lord , at D., in the county of N., the said A. B., then and there being an officer, to wit, the cashier of the Dedham Bank, a corpora- tion then and there duly and legally established, organized, and existing imder and by virtue of the laws of this Com- monwealth, as an incorporated bank, did feloniously and fraudulently convert to the said A. B.'s own use, certain money, to a certain large amount, to wit, to the amount and sum of one hundred thousand dollars, and of the value of one hundred thousand dollars, of the property and moneys of the said President, Directors, and Company of the Dedham Bank, being in their banking-house, there situate ; whereby and by 1 ^ Kex V. Scott, 1 East, P. C. 655; Russell & Ryan, C. C. 13; Rex v. Gaby, Russell & Ryan, C. C. 178 ; 1 Gabbett, Crim. Law, 601. ' Where the property stolen is alleged to be that of Richard G., and it is afterwards alleged to be the property of Robert G^ it is a mere clerical error. Greeson ». The State, 5 Howard, (Missis-sippi,) 33. 29* 342 LARCENY. [chap. XXXI. force of the statute in such case made and provided, the said A. B. is deemed to have committed the crime of larceny in said bank. And so the jurors aforesaid, upon their oath aforesaid, do say that the said A. B., then and there, in man- ner andrform aforesaid, the aforesaid money, of the property and moneys of the said President, Directors, and Company of the Dedham Bank, feloniously did steal, take, and carry away, in the banking-house aforesaid ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. 3. For breaking cmd entering a railroad depot, in the night time, with intent to commit larceny. Mass. Sfe 1851, ch. 156, § 1.1 The jurors, etc., upon their oath present, that C. D. late of, etc,, on the first day of June in the year of our Lord , with force and arms, at A. in the county of M., a certain building, to wit, the depot building of the Boston and Wor- cester Railroad Corporation there situate, in the night time of said day, feloniously did break and enter, with intent then and there in the night time, to commit the crime of larceny in the depot buUding aforesaid; against the peace of said^ Commonwealth, and contrary to the form of the statute in such case made and provided. 4. For breaking amd entering a stable in the night time, and committing a la/rceny therein. — Mass. St. 1851, ch. 156, §1. The jurors, etc., upon their oath present, that C. D. late of, etc., laborer, on the first day of June in the year of our Lord , with force and arms, at B. aforesaid, in the county aforesaid, a certain building, to wit, the stable of one E. F. ' In Commonwealth ». White, 6 Gushing, 181, it was held, that the passen- ger room of a railroad station, where the books are kept and tickets sold, is not an office within the Bev. Sts. ch. 126. CHAP. XXXI.] LARCENY. 343 there situate, in the night time of said day, feloniously did break and enter, and one chaise, of the value of one hundred dollars, one saddle, of the value of ten dollars, and one bridle, of the value of five dollars, of the goods and chattels of the said E. F., then and there in the stable aforesaid being found, then and there in the night time feloniously did steal, take, and carry away, in the ^able aforesaid ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. 5. For breaking and entering a shop in the night time, adjoin- ing to a dwelling-house, with intent to commit the crime of larceny, and actually stealing therein. — Mass. St. 1839, ch. 31.1 The jurors, etc., upon their oath present, that Joseph H. Josslyn, late of, etc., on the first day of February in the year of our Lord , with force and arms, at Waltham, in the county of Middlesex, the shop of one Charles W. Fogg, there situate, adjoining to a certain dwelling-house,* in the night time did break and enter, with intent the goods and chattels of said Fogg, then and there in said shop being found, feloniously to steal, take, and carry away;* and one English gold lever "*■ A count in an indictment, wliich charges the breaking and entering, in the night time, of a shop adjoining to a dwelling-house, with intent to commit a larceny, may be joined with a coimt which charges the stealing of goods in the same shop ; and the defendant, if found guilty, m^y be sentenced for both offences. But if the breaking and entering, and the actual stealing, are chained in one count, only one offence is charged, and the defendant, on conviction, can be sentenced to one penalty only. Josslyn ». The Common- wealth, 6 Metcalf, 236 ; Commonwealth v. Hope, 22 Pickering, 1 ; Common- wealth V. Tuck, 20 Pickering, 356. ' It is not necessary to aver that the shop was or was not " adjoining to a dwelling-house." Larned v. The Commonwealth, 12 Metcalf, 240 ; Devoe v. The Commonwealth, 3 Metcalf, 316. See Commonwealth ». Tuck, 20 Pick- ering, 356 ; Eex v. Marshall, 1 Moody, C. C. 158. • This is a sufficient averment. The words of the St. 1839, ch. 31, are " with intent to commit the crime of larceny.'' But it is not necessary to aver the intent in the words of the statute. Josslyn v. The Commonwealth, 6 Metcalf, 236. 344 LARCENY. [chap. XXXI. watch, of the value of one hundred dollars, and one gold Lepine watch, of the value of one hundred dollars, nine old silver watches, each of the value of ten dollars,^ of the goods and chattels of the said Charles W. Fogg, then and there in the shop of said Fogg being found, then and there in the night time, feloniously did steal, take, and carry away, in the shop aforesaid ; against the peace' of said Commonwealth, and contrary to the form of the statute in such case made and provided. 6. For breakitig and entering- a shop in the night time, and committing a larceny therein. — Mass. Rev. Sts. ch. 126, §11. The jurors, etc., upon their oath present, that C. D. late of, etc., laborer, on the first day of June in the year of our Lord , with force and arms, at B. aforesaid, in the county aforesaid, the shop of one A. B. there situate, in the night time of the same day feloniously did break and enter, and, here insert all the articles stolen, alleging the kind, rmmber, and value of each, of the goods and chattels of the said A. B., then and there in the shop aforesaid being, found, then and there in the night time feloniously did steal, take, and' carry away, in the shop aforesaid; against the peace of said Common- wealth, and contrary to the form of the Statute in such case made and provided. 7. For breaking amd entering a vessel in the night time, and committing a larceny therein. — Mass. Rev. Sts. ch. 126, §11. The jurors, etc., upon their oath present, that C. D. late of, ' Where an indictment for breaking and entering a building, with intent to steal therein, is correctly framed, an additional charge, that the defendant committed a larceny therein, though defective, and such as would not of itself be a sufficient indictment for larceny, is no cause for reversing a judg- ment rendered on a general verdict of guilty. Lamed «. The Common- wealth, 12 Metcalf, 240. CHAP. XXXI.] LABCENY. 345 etc., laborer, on the first day of June in the year of our Lord , with force and arms, at B. aforesaid, in the county aforesaid, a certain vessel of the property of one A. B., called the , within the body of the said county of S. then and there lying afid being, in the night time of said day, feloni- ously did break and enter, and one trunk, of the value of five dollars, etc., in the vessel aforesaid then and there being found, then and there in the night time feloniously did steal, take, and carry away, in the vessel aforesaid; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. 8. For entering a dweUing-house in the night time, without breaking, some persons being therein, and being put in fear. — Mass. Rev. Sts. ch. 126, § 12. The jurors, etc., upon their oath present, that C. D. late of, etc., on the first day of June in the year of our Lord , with force and arms, at D. in the county of N., the dwelling- house of one A. B. there situate, in the night time of said day feloniously did enter, without breaking the same, with intent then and therein to commit the crime of larceny ; one A. B., and M. his wife, then, to wit, at the time of the com- mitting of the felony aforesaid, lawfully being in the said dwelling-house, and by the said C. D. were then and there put in fear ; against the peace of the said Commonwealth, and contrary to the form of the statute in such case made and provided. 9. For breaking and entering a dwelling-house in the daytime, the owner being therein, and being put in fear. — Mass. Kev. Sts. ch. 126, § 12. The jurors, etc., upon their oath present, that C. D. late of, etc., on the first day of June in the year of our Lord , with force and arms, at D. in the county of N., the dweUing- house of one A. B. there situate, in the daytime feloniously 346 LAECENT. [chap. XXXI. did break and enter, with intent then and therein to commit the crime of larceny ; the said A. B., and M. his wife, then, to wit, at the time of the committing of the felony aforesaid, lawfully being in said dwelling-house, and by the said C, D. were then and there put in fear ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. 10. Larceny in a dwelling-house in the daytime, — Mass. Rev. Sts. ch. 126, § 14.1 The jurors, etc., upon their oath present, that Pardon "Williams, late of Boston, in the county of Suffolk, tailor, on the first day of June in the year of our Lord , at Boston, in the county aforesaid, one certain original book of accounts concerning money due, of the value of twenty dollars, etc., of the goods and chattels of one Alida M. RhoU, in the dwell- ing-house of one Susan H. Danforth, there situate,^ in the SEiid Alida's possession then and there being, did then and there, in said dwelling-house, in the daytime, feloniously steal, take, and carry away ; against the peace of said Common- wealth, and contrary to the form of the statute in such case made and provided. 11. Larceny in a dwelling-house in the night time. — Mass. St. 1843, ch. 1, § 1.3 The jurors, etc., upon their oath present, that C. D. late of, etc., at B, in the county of S., on the first day of June in the year of our Lord , one silver cup, of the value of five dol- I Commonwealth v. Williams, 9 Metcalf, 273. ' Where the indictment alleged that the defendant, at, etc., stole certain goods in the dwelling-house of W. T. " then and there being," omitting the words " there situate," it was held that the house must be considered as de- scribed of the place laid as special venue. Rex v. Napper, 1 Moody, C. C.44. ' See Hopkins v. The Commonwealth, 3 Metcalf, 460, 466. CHAP. XXXI.] LARCENY. 347 lars, twelve silver spoons, each of the value of one dollar, and one silver pitcher, o^ the value of fifty dollars, of the goods and chattels of one A. B., in the dweUing-house of the said A. B. there situate, then and there being, did then and there, in said dwelling-house, in the night time of said day, feloni- ously steal, take, and carry away ; against the peace of said Commonwealth, and contrary to the . form of the statute in such case made and provided. 12. BreaMv^ and entering a city hall, amd stealing therein in the night time. — Mass. Kev. Sts. ch. 126, § 14.^ The jurors, etc., upon their oath presentj that John Wil- liams, late of, etc., on the twelfth day of November in the year of our Lord , with force and arms, at Charlestown, in the county of Middlesex aforesaid, the city haU of the city of Charlestown, in said county, there situate, and erected for public uses, to wit, the transaction of the municipal business of said city of Charlestown, in the night time of the said day, feloniously did break and enter, and ten pieces of gold coin, current within this Commonwealth by the laws and usages thereof, called eagles, of the value of ten dollars each, ten other pieces of gold coin, current within this Commonwealth by the laws and usages thereof, called sovereigns, of the value of five dollars each, of the goods and chattels and moneys of the said city of Charlestown, then and there in the city haU aforesaid, being found, then and there in the night time, feloniously did steal, take, and carry away, in the city hall aforesaid ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. ' In an indictment under this section of the statute, for breaking and enter- ing in any of the buildings therein mentioned, the amount or value of the property stolen is immaterial. And it is a sufficient allegation as to the steal- ing, if there is a larceny properly and technically charged of any of the goods alleged in the indictment to be stolen. Commonwealth v. Williams, 2 Gushing, 582. 348 LABCENT. [chap. XXXI. 13. For breaking cmd entering a meeting-house in the night time, and committing a larceny therein. — Mass. Rev. Sts. ch. 126, § 14. The jurors, etc., upon their oath present, that C. D. late of, etc., laborer, on the first day of June in the year of our Lord , with force and arms, at B. aforesaid, in the county aforesaid, the meeting-house of the First Parish in said B,, there situate, and erected for public uses, to wit, for the public worship of God, in the night time of the same day feloniously did break and enter, and two silver cups, each of the value of fifty dollars, of the goods and chattels of the First Parish in the said town of B., then and there in the meeting-house aforesaid being found, then and there ia the night time feloniously did steal, take, and carry away, in the meeting-house aforesaid ; against the peace of said Common- wealth, and contrary to the form of the statute in such case made and provided. 14. For stealing in a building that is on fire. — Mass. Rev. Sts. ch. 126, § 15. The jurors, etc, upon their oath present, that C. D. late of, etc., on the first day of June in the year of our Lord , at S. in the county of E., with force and arms, one gold watch, of the value of one hundred dollars, one gold ring, of the value of ten dollars, and one gold bracelet, of the value of twenty doUars, of the goods and chattels of one E. F., in a certain building, to wit, the dwelling-house of the said E. F., there situate, then and there being, which said dwelUng-house was then and there on fire, then and there feloniously did steal, take, and carry away, in the dwelling-house aforesaid ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. CHAP. XXXI.] LAKCENT. 349 15. For stealing property removed in consequence of alarm caused by fire. — Rev. Sts. of Mass. ch. 126, § 15. The jurors, etc., upon their oath present, that C. D. late of, etc., on the first day of June in the year of our Lord , at S. in the county of E., with force and arms, one sofa, of the value of fifty dollars, of the goods and chattels of one E. F., the said sofa being then and there removed from the dwelling-house of the said E. F., in consequence of an alarm caused, by fire, feloniously did steal, take, and carry away ; against the peace of the said Commonwealth, and contrary to the form of the statute in such case made and provided. 16. For a larceny from the person. — Rev. Sts. of Mass. ch. 126, § 16.1 The jurors, etc., upon their oath present, that C. D. late of L. in the county of M., laborer, on the first day of June in the year of our Lord -, with force and arms, at L. in the county of M., one gold watch, of the value of one hundred dollars, of the goods and chattels of one B. F., then and there from the person of the said E. F. feloniously did steal, take, and carry away ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. 17. For a larceny of real property. — Mass. St. 1851, ch. 151. The jurors, etc., upon their oath present, that J. S. late of C. in the county of M., laborer, on the first day of June in the year of our Lord , with force and arms, at C. in the county of M., fifty pounds weight of lead, each of the value of ten cents, of the property of one A. B., and against the will of 1 See Commonwealth v. Dimond, 3 Gushing, 235 ; Commonwealth v. East- man, Mass. Sup. Jud. Ct. Middlesex, Oct. T. 1854. This case will be re- ported in the second volume of Gray's Reports. 30 350 LARCENY. [chap. XXXI. the said A. B., then and there being parcel of the realty, to wit, of the dwelling-house of the said A. B. there situate, wil- fully and maliciously did rip, cut, and break, and then and there did take and carry away the same, with intent then and there the same feloniously to steal, take, and carry away; whereby and by force of the statute in such case made and provided, the said C. D. is guilty of the crime of simple lar- ceny. And so the jurors aforesaid, upon their oath afore- said, do say, that the said C. D. then and there, in manner . and form aforesaid, the lead aforesaid, of the property of the said A. B, feloniously did steal, take, and carry away ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. CHAPTER XXXII. LEWDNESS AND LASCIVIOTJS COHABITATION. 1. Indictment, at common law, for exposing the per son?- The jurors, etc., upon their oath present, that C. D. late of B. in the county of S., laborer, devising and intending the morals of the citizens of said Commonwealth to debauch and corrupt,^ on the first day of June in the year of our Lord , at B. aforesaid, in the county aforesaid, on a certain common and public highway there situate, in the presence of divers citizens of said Commonwealth then and there being, and within sight and view of divers other citizens through and on the said highway then and there passing and repass- ing, unlawfully, publicly, wilfully, wantonTy, scandEdously, and indecently did expose to the view of the said persons so present, and so passing and repassing as aforesaid, the body and person of the said C. D. naked and uncovered, for a long space of time, to wit, for the space of one hour ; to the common nuisance, etc.,^ and against the peace of said Com- monwealth. • An indecent exposure, though in a place of public resort, if visible by one person only, is not indictable as a common nuisance. Begina v. Webb, 1 Denison, C. C. 338; 3 Cox,.C. C. 183; 2 Carrington and Kirwan, 933; 1 Temple & Mew, C. C. 23 ; Kegina v. Watson, 3 Cox, C. C. 376 ; 20 Eng. Law and Eq. Rep. 599, note. And see The State v. Roper, 1 Devereaux & Battle, 208. ' This {allegation sufficiently charges a criminal intent. Commonwealth v. Haynes, Mass. Sup. Jud. Ct Middlesex, October Term, 1854. This case will be reported in the second volume of Gray's Reports. • In Massachusetts, it has been held, that it is not necessary that the indict- ment should conclude ad commune nocumentum. Commonwealth v. Haynes, 352 LEWDNESS, ETC. [CHAP. XXXII. 2. For lewd and lascivious cohabitation, — Rev. Sts. of Mass. ch. 130, § 4.1 The jurors, etc., upon their oath present, that C. -D. late of, etc., on the first day of June in the year of our Lord , at B. aforesaid, in the county aforesaid, and from that day continually, to the first day of June in the year of our Lord , at B. aforesaid, in the county aforesaid, did lewdly and lasciviously associate and cohabit with one J. N. ; the said C. D. being then and there an unmarried man, and the said J. N. being then and there an unmarried woman, and the said C. D. and the said J. N. not being then and there married to each other ; against the peace, etc., and contrary, etc. 3. For open a/nd gross lewdness and lascivious behavior. — Rev. Sts. of Mass. ch. 130, § 4.2 The jurors, etc., upon their oath present, that C. D. late of B. in the county of S., laborer, on the first day of June in the year of our Lord , at B. aforesaid, in the county Mass. Sup. Jud. Ct Middlesex, October Term, 1854. But see Regina v. Wehh, ubi supra ; Regina ». Watson, «6i supra; Kegina o. Holmes, Dearsley, C. C. 207; 6 Cox, C. C. 216; 3 Carrington & Kirwan, 360; 20 Eng. Law and Eq. Kep. 697. * By eohabiting must be understood a dwelling or living together, and not a transient and single unlawful interview. Commonwealth v. Calef, 10 Mas- sachusetts, (Band's ed.), 152. See Hinson v. The State, 7 Missouri, 244. ' See Commonwealth v. Catlin, 1 Massachusetts, (Rand's ed.), 7 ; The State V. Moore, 7 Swan, 136 ; The State v. Millard, 18 Vermont, 575 ; The State V. Grisham, 2 Yerger, 589. In Commonwealth v. Hunt, 4 Gushing, 49, the husband had obtained a divorce from the bond of matrimony, for the cause of utter and wilful desertion by the wife for the term of five years consecutively, without hia consent. The wife afterwards went into another State, and was there married to another man, with whom she returned to Massachusetts, and there lived and cohabited. She was indicted for lewd and lascivious cohabitation, but it was held, that if she was guilty of any offence under the Rev. Sts. ch. 130, she was indictable under the second sec- tion, which punishes the crime of polygamy, and not under the fourth section, for lewd and lascivious behavior. CHAP. XXSn.] LEWDNESS, ETC. 353 aforesaid, was guilty of the crime of open and gross lewdness and lascivious behavior, by then and there, here set forth the acts^ the said C. D. being then and there a married man, and then and there having a lawful wife alive other than the said J, N. ; against the peace, etc., and contrary to the form, etc. ' See Dameron v. The State, 8 Missouri, 494. 30* CHAPTER XXXIII. LIBEL. The several species of this offence which are indictable at common law, are indictable in the United States, either at common law, or by virtue of particular statutes ; the common law being adopted in all the States, except so far as it may have been altered by statutes or constitutional provisions.^ The most important part of the indictment is, the setting forth of the matter charged as libellous. It must not only contain, but it must also profess to set out, the words of which the alleged libel is composed, that is to say, a transcript of the libellous publication, or of that part of it, which is the subject of the indictment. The word "tenor," imports an exact copy, and that it is set out in words and figures.^ K parts of the publication are selected, they must be set forth thus : " In a certain part of which said , there were and are contained certain false, wicked, malicious, scandalous, and libellous matters of and concerning the said C. D., ac- cording to the tenor following, that is to say, " And in a cer- tain other part," etc., etc.^ When the publication is so * Commonwealth v. Chapman, 13 Metcalf, 68 ; Commonwealth v. Knee- land, 20 Pickering, 206, 232; Commonwealth v. Holmes, 17 Massachusetts, (Rand's ed.), 335 ; Commonwealth v. Blanding, 3 Pickering, 304 ; Common- wealth V. Clap, 4 Massachusetts, (Rand's ed.), 163 ; The State v. Henderson, 1 Richardson, 179; The State w. Farley, 4 McCord, 317; The State u. White, 6 Iredell, 418 ; 7 Iredell, 180 ; The State v. Bumham, 9 New Hampshire, 34 ; 8 Greenleaf, on Ev. § 164, 165. ' Commonwealth v. Wright, 1 Gushing, 46 ; Wright v. Clements, 3 Bame- wall & Alderson, 503. The attaching of one of the original printed papers to the indictment, in place of inserting a copy, is not a sufficient indication, that the paper is set out in the very words. Commonwealth v. Tarbox, 1 Cashing, 66. ' See Tabart v. Tipper, 1 Campbell, 350, 363. CHAP. XXXIII.] LIBEL. 355 obscene, as to render it improper that it should appear on the record, then the statement of the contents may be omitted altogether, and a description thereof substituted ; but, in this case, a reason for the omission must be stated in the indic.t- ment, by proper averments.^ Where the publication on which the indictment rests is in the defendant's possession, or can- not be produced, and there is no laches on the part of the government, it is necessary to aver in the indictment such facts as are sufficient to excuse the nOn-description of the instrument, and then to proceed, either by stating its sub- stance, or by describing it as an instrument which cannot be set forth by reason of its loss, destruction, or detention, as the case may be.^ K the libel be in a foreign language, it must be set out in such language, verbatim, together with a correct translation.^ Besides setting out the libellous passages of the publica- tion, the indictment must also contain such averments and innuendoes as may be necessary to render it intelligible, and its application to the party libelled, evident. When the statement of an extrinsic fact is necessary in order to render the libel intelligible, or to show its KbeUous quality, such extrinsic fact must be averred in the introductory part of the indictment ; but where it is necessary merely to explain a word by reference to something which has preceded it, this is done by an innuendo. And an innuendo can explain only in cases where something has already appeared upon the record to found the explanation ; it cannot, of itself, change, add to, or enlarge the sense of expressions beyond their usual accepta- tion and meaning.* The indictment must charge a publication, for it is not ' Commonwealth v. Holmes, 17 Massachusetts, (Band's ed.), 335; Com- monwealth V. Tarbox, 1 Cashing, 66. » Ante, p. 213, 214. And see The United States v. Britton, 2 Mason, 464. ' Zenobio v. Axtel, 6 Term Reports, 162 ; Archbold, Crim. PI. (London ed.), 607, 608. * Commonwealth v. Snelling, 15 Pickering, 321, 335 ; The State v. Hender- son, 1 Richardson, 179; Archbold, Crim. PI. (London ed. 1853), 608. 356 LIBEL. [chap, xxxin. perfectly clear that it is a criminal offence to compose and write libellous matter if it be not published ; ^ and it is well settled that the charge will be supported by proof of the publication alone.2 The indictment must expressly aver, that the libel was "of and concerning" the party libelled, unless this is clearly and distinctly shown by the inevitable construction of the libel itself ; and the omission of those words is not supplied by innuendoes pointing out the different parts of the libel to mean the party libelled.^ The question whether a bill of particulars should be required, is, in this case, as in all others, exclusively within the discretion of the presiding judge.* 1. Indictment for libel, and a plea of justification under Lord CaMpbell's act!' The jurors, etc., upon their oath present, that before and at the time of publishing the false,, scandalous, malicious, and defamatory libel hereinafter mentioned, Henry Phillpotts had become and was and still is. Lord Bishop of Exeter, to wit, bishop of the diocese of Exeter, in that part of the United Kingdom of Great Britain and Ireland called Eng- land, and that before the time of the publishing of the said false, scandalous, malicious, and defamatory libel here- ^ See Eex v. Burdett, 1 Barnewall & Alderson, 95. Although if a party ■write a libel in the county of A. with intent to publish it, and afterwards publish it in the county of B., he may be indicted for the misdemeanor in either county. Kex v. Burdett, vhi supra. ' Rex V. Hunt, 2 Campbell, 583 ; Eex v. Williams, 2 Campbell, 646 ; 3 Greenleaf on Ev. § 169. See The State v. Barnes, 32 Maine, 530. • Rex V. Marsden, 4 Maule & Selwyn, 164. See Gregory v. Regina, 5 Cox, C. C. 247; 2 Deacon, Crim. Law, 810; The State v. Henderson, 1 Richardson, 174; Taylor v. The State, 4 Georgia, 14. * Commonwealth v. Snelling, 15 Pickering, 321 ; Conmionwealth v. Giles, 1 Gray, 466 ; ante, p. 56, 190, note. ' The following were the pleadings in the famous case of the prosecution of the proprietor of The Western Times, by the Bishop of Exeter, for a libel. They were settled by eminent counsel on both sides, and will be valuable, as precedents that have been subjected to the keenest scrutiny, and found to be unimpeachable. 3 Cox, C. C. Appendix, p. xxxviii. CHAP. XXZIII.] LIBEL. 357 inafter mentioned, to wit, on the first day of May in the year of our Lord , a certain petition of one James Shore, to the lords spiritual and temporal of the United Kingdom of Great Britain and Ireland in parliament as- sembled, had been and was presented by a certain peer of the realm, to wit, by Henry, Lord Brougham "and Vaux, to the said lords spiritual and temporal in parliament assembled ; and that the said Henry, Lord Brougham and Vaux did, to wit, on the day and year aforesaid, and on the occasion of the said presenting the said petition to the said lords spiritual and temporal, address and make to the said lords spiritual and temporal in parliament assembled, certain observations with reference to and concerning the said petition, and the several matters and things in the said petition contained ; and that the said Herury, Bishop of Exeter, then being one of the said lords spiritual, did, on the day and year aforesaid, and on the occasion aforesaid, address and make to the said lords spiritual and temporal in parliament assembled, certain ob- servations and statements, in answer and with reference to the said observations of the said Henry, Lord Brougham and Vaux, and with reference to the said matters and things con- tained in the said petition of the said James Shore. And the jurors aforesaid, on their oath aforesaid, do further present, that Thomas Latimer, of the parish of Saint John, in the city and county of the city aforesaid, laborer, well knowing the premises, but contriving and wickedly, maliciously, and unlawfully intending to aggrieve and vilify the said Henry, Bishop of Exeter, and to injure him in his good name, fame, and credit, and to bring him into public scandal, infamy, and disgrace, in his diocese, and among the clergy of his said diocese, and the other clergy of this realm, and also among his neighbors and other good and woirthy subjects of this realm, afterwards, to wit, on the twenty-fourth day of July in the year of our Lord , with force and arms, at the parish aforesaid, in the city and county of the city aforesaid, in a certain newspaper called, to wit, The Western Times, falsely, wickedly, and maliciously, did write and publish, and cause and procure to be written and published, a certain false, 358 LIBEL. [chap, xxxin. wicked and malicious, scandalous and defamatory libel, of and concerning the said Henry, Bishop of Exeter, and of and concerning him as such bishop as aforesaid, and of and concerning the matters and things aforesaid, in the words and figures following, that is to say, " Bishop Phillpotts." (Then follows the libel) concluding thus, " unfortunately he (mean- ing thereby the said Henry, Bishop of Exeter) goes quite the other way, and his (meaning thereby the said Henry, Bishop of Exeter) reply is so directly the opposite of the truth, that he (meaning thereby the said Henry, Bishop of Exeter) stands branded as a consecrated, careless perverter of facts, and one who does no credit to the mitre which he (meaning thereby the said Henry, Bishop of Exeter) is paid two hun- dred pounds a week, or thereabouts, to wear," etc., knowing the same to be false, etc., contra pacem, etc. First Plea. — And now, that is to say, on the eleventh day of January, in this same term, before our said Lady the Queen, at Westminster, cometh the said Thomas Latimer, by Thomas Baker, his attorney, and having heard the said in- dictment read, saith he is not guilty of the said premises in the said indictment above specified and charged upon him, and of this the said Thomas Latimer put himself upon the coun- try, etci Second Plea. — And for a further plea in this behalf to so much of the first and fourth counts of the said indictment, as charged upon the said Thomas Latimer, the writing and pub- lishing and causing and procuring to be written and published so much of the said alleged libels in the said first and fourth counts respectively mentioned, as imputes to or charges against Henry, Lord Bishop of Exeter, thereyi respectively also mentioned, that the reply of him the said Henry, Lord Bishop of Exeter, to the observations of Henry, Lord Brougham and Vaux, in the said first and fourth counts respectively mentioned, in reference to the petition of James Shore therein also respectively mentioned, was so directly op- posite to the truth, that the said Henry, Lord Bishop of Exeter, stands branded as a careless perverter of facts, the said Thomas Latimer by virtue of the statute in such case CHAP. JCXXin.] LIBEL. 359 made and provided says, that before the writing and publish- ing of, and causing and procuring to be written and published, so much of the said alleged libel respectively as is in the introductory part of this plea mentioned, to wit, on the twelfth day of September in] the year of our Lord , the most noble Edward Adolphus, Duke of Somerset, then and thenceforth and until and at the time of the writing and pub- lishing of, and causing and procuring to be written and published, so much of the said alleged libels as last aforesaid, and stiU being a peer of the realm of the United Kingdom of Great Britain and Ireland, to wit, Duke of Somerset and Baron Seymour of Hacke, in the county of Somerset, had erected and built, at his own expense, a certain chapel for the public worship of God, on certain lands of the said Edward Adolphus, Duke of Somerset, situate in the ham- let of Bridgetown, in the parish of Berry Pomeroy, in the county of Devon, and in the said diocese of Exeter, in the said first and fourth counts respectively mentioned, to wit, at the said parish in the said first and fourth counts respectively mentioned. And the said Thomas Latimer further saith, that afterwards and before the writing and publishing of, and causing and procuring to be written and published, so much of the said alleged libels as aforesaid, to wit, on the day and year last aforesaid, the said Edward Adolphus, Duke of Somerset, with the consent of the Reverend John Edwards, clerk, then being the vicar of the said vicarage and parish church, applied to and requested the said Henry, Lord Bishop of Exeter, then being Lord , Bishop of the said diocese of Exeter, and the ordinary of the said vicarage and parish church, to grant his license, that the said chapel might be opened and used for the celebration of Divide service accord; ing to the rites and ceremonies of the United Church of England and Ireland by public authority established, to wit, at the said parish in the said first and fourth counts respect- ively in that behalf mentioned. And the said Henry, Lord Bishop of Exeter then, on such request of the said Edward Adolphus, Duke of Somerset, being so made to him as afore- said, stated to the said Edward Adolphus, Duke of Somerset, 360 LIBEL. [chap. XXXIII. that the said Henry, Lord Bishop of Exeter, was willing to grant such license as aforesaid, provided the said Edward Adolphus, Duke of Somerset, would, previously to the granting thereof, engage and undertake with and to the said Henry, Lord Bishop of Exeter, that the said Edward Adolphus, Duke of Somerset, would, to the satisfaction bf him the said Henry, Lord Bishop of Exeter, endow the said chapel with a permanent provision for the maintenance of a minister in holy orders to celebrate such Divine service as aforesaid; and would convey and assure the said land whereon the said chapel was built as aforesaid, and also the said chapel so and in such manner that the said chapel might be for ever devoted and set apart to and for such Divine ser- vice as last aforesaid ; and that the said chapel should, in the mean time and until such endowment and conveyance and assurance as aforesaid, only be used for purposes connected with the ministry of the said United Church of England and Ireland, to wit, at the parish aforesaid. And the said Thomas Latimer further saith, that afterwards and before the granting of the license to the said Edward Adolphus, Duke of Somer- set, by the said Henry, Lord Bishop of Exeter, as hereinafter mentioned, to wit, on the twenty-second day of September in the year of our Lord , and thenceforth always until the granting of such license, the said Edward Adolphus, Duke of Somerset, declined to enter into or give any such engagement or undertaking with and to the said Henry, Lord Bishop of Exeter, as aforesaid; and the said Hemy, Lord Bishop of Exeter, thereupon, then, to wit, on the day and year last aforesaid, consented to grant such license as afore- said to the said Henry Adolphus, Duke of Somerset, without requiring him to pnter into or give any such engagement or undertaking as aforesaid, to wit, at the parish last aforesaid. And the said Henry, Lord Bishop of Exeter, afterwards and before the writing and publishing of, and causing and procur- ing to be written and published, so much of the said alleged libels as aforesaid, to wit, on the ninth day of November in the year of our Lord , in accordance with the consent so given by him as aforesaid, the said Edward Adolphus, CHAP. XXXm.] LIBEL. 361 Duke of Somerset, having declined and then declining to enter into and give and not theretofore or then or at any time since having entered into or given any such engagement or undertaking as aforesaid, did, by a certain license there sub- scribed by him the said Henry, Lord Bishop of Exeter, and sealed with his Episcopal seal, bearihg date a certain day and year in that behalf therein named, to wit, the day and year last aforesaid, give and grant his license unto the said Edward Adolphus, Duke of Somerset, that the said chapel might be forthwith opened and used for the celebra- tion of Divine service, according to the rites and ceremonies of the said United Church of England and Ireland, by a priest or minister in holy orders, to be for that purpose licensed by the said Henry, Lord Bishop of Exeter, to wit, at the parish last aforesaid. And the sEiid Thomas Latimer farther saith, that afterwards, and before the writing and pub- lishing of, and causing and procuring to be written and published, so much of the said alleged libels as aforesaid, to wit, on the said first day of May in the year of our Lord , in the said first and fourth counts respectively mentioned, the said Henry, Lord Bishop of Exeter, did, in reply to the said observations of the said Henry, Lord Brougham and Vaux, in the said first and fourth counts respectively mentioned, in reference to the said petition of the said James Shore, and in the said observations and statements addressed and made by him, the said Henry, Lord Bishop of Exeter, in answer to the said observations of the said Henry, Lord Brougham and Vaux, as therein respectively also mentioned, did speak and say to the said lords spiritual and temporal, in parliament assembled, of and concerning the said observations and state- ments of the said Hemy, Lord Brougham and Vaux, and of and concerning the said Edward Adolphus, to the said Henry, Lord Bishop of Exeter, for such license to open and use the same as aforesaid; and of and concerning such license as last aforesaid; and of and concerning such en- gagement and undertaking so required by him, the said Henry, Lord Bishop of Exeter, and declined to be entered into and given by the said Edward Adolphus, Duke of 31 362 LIBEL. [chap. XXXIII. Somerset, as aforesaid; and of and concerning the said petition of the said James Shore, and the matters therein contained ; and of and concerning the premises, the words following, that is to say, " I " (meaning himself the said Henry, Lord Bishop of Exeter,) " should wish to have been excused from entering into, the circumstances of the present case," (meaning the said matters and things contained in the petition of the' said James Shore, as aforesaid,) "but my noble and learned friend" (meaning the said Henry, Lord Brougham and Vaux) "has stated several matters" (mean- ing the said matters stated by the said Henry, Lord Brough- am and Vaux) "in his said observations in reference to the said petition of the said James Shore, which cannot be left unanswered. It is certainly true the nolile Duke alluded to ]' (meaning the said Edward Adolphus, Duke of Somer- set) " built the chapel in question," (meaning the said chapel hereinbefore mentioned, at Bridgetown, meaning the said hamlet of Bridgetown, in the parish of Berry Pomeroy afore- said) ; " and some years ago the noble Duke," (meaning the said Edward Adolphus, Duke of Somerset) " applied to me " (meaning himself, the said Henry, Lord Bishop of Exeter) " to consecrate it " (meaning the said chapel). " Several com- munications " (meaning the said request of the said Edward Adolphus, Duke of Somerset, for the said license to open and use the said chapel, and the said requisitions of him, the said Henry, Lord Bishop of Exeter, that the said Edward Adolphus, Duke of Somerset, should enter into and give such undertaldng and engagement as aforesaid) "had passed between himself" (meaning himself, the said Henry, Lord Bishop of Exeter) " and the noble Duke," (meaning the said Edward Adolphus, Duke of Somerset,) "and finally I" (meaning himself, the said Henry, Lord Bishop of Exeter) " consented to license the chapel," (meaning the chapel afore- said,) "the Duke" (meaning the said Edward Adolphus, Duke of Somerset) " undertaking to endow it," (meaning the said chapel,) "in order to its being consecrated" (meaning in order to the said chapel being consecrated). " And that meanwhile it should only be used for purposes connected CHAP. XXXIII.] LIBEL. 363 with the ministry of the Protestant Established Church," (meaning the said United Church of England and Ireland, by public authority established,) " both of which engagements I " (meaning himself, the said Henry, Lord Bishop of Exeter) "regret to state have been violated by the noble Duke," (meaning the said Edward Adolphus, Duke of Somerset,) "for reasons which, doubtless, are satisfactory to his own mind," (meaning the mind of the said Edward Adolphus, Duke of Somerset,) "though I" (meaning himself, the said Henry, Lord Bishop of Exeter) "cannot even guess what they are," to wit, at the parish last aforesaid. And the said Thomas Latimer further saith, that it was for the public benefit that so much of the said alleged libels in the said first and fourth counts respectively mentioned, as in the intro- ductory part of this plea mentioned, should be published, by reason that it is for the pubfic benefit that when statements opposite of the truth and perversive of facts are made by a person filling a high public office, to wit, of Bishop of the said United Church of England and Ireland, of and concern- ing the character and conduct, and to the prejudice and dis- credit, of another person standing in a high and important public position, to wit, a peer of the realm of the said United Kingdom of Great Britain and Ireland, that the truth in respect of the matters stated should be published and made to appear, so that the liege subjects of our Lady the Queen may not thereby be misled, or be induced to form an erroneous or ill-founded opinion respecting the character and conduct of such person as last aforesaid, to wit, at the parish last aforesaid. Wherefore he the said Thomas Latimer, at the said several times, etc., in the said first and fourth counts in that behalf respectively mentioned, at the said parish therein also in that behalf respectively mentioned, wrote and published, and caused and procured to be written and published, so much of the said alleged libels, in the said first and fourth counts respectively mentioned, as imputes to or charges against the said Hemy, Lord Bishop of Exeter, that the said reply of him, the said Henry, Lord Bishop of Exeter, to the said observations of the said Henry, Lord 364 LIBEL. [chap, xxxiir. Brougham and Vaux, in reference to the said petition of the said James Shore, was so directly opposite of the truth, that the said Henry, Lord Bishop of Exeter, stands branded as a careless perverter of facts, as he, the said Thomas Latimer, lawfully might, for the cause aforesaid, which are the same writing and publishing as are in the said first and fourth counts respectively, and in the introductory part of this plea, mentioned. And this the said Thomas Latimer is ready to verify, etc. Wherefore he prays judgment if our said Lady the Queen will or ought further to impeach him of, and concerning the premises in the introductory part of this plea mentioned ; and that he, the said Thomas Latimer, may be dismissed and dis- charged of the court here of and concerning the premises last aforesaid. First Replication. — And whereupon Charles Francis Robinson, Esquire, coroner and attorney of our said Lady the Queen, in the court of our said Lady the Queen, before the Queen herself, who prosecuteth for our said Lady the Queen in this behalf, being present here in court, and having heard the said plea of the said Thomas Latimer, by him first above pleaded in bar, and whereof the said Thomas Latimer hath put himself upon the country, for our said Lady the Queen doth the like. Second. — And as to the plea of the said Thomas Latimer by him secondly above pleaded, the said coroner and attorney of our said Lady the Queen, in the court of our said Lady the Queen, before the Queen herself, who prosecuteth for our said Lady the Queen in this behalf, being present here in court, having heard the said plea of the said Thomas Latimer, by him secondly above pleaded in bar, for our said Lady the Queen saith, that for any thing by the said Thomas Latimer in his said second plea alleged, our said Lady the Queen ought not to be barred from prosecuting the said indictment against the said Thomas Latimer, of and concerning the premises in the introductory part of the said second plea mentioned, because he says that the said Thomas Latimer, of his own wrong and without the cause and matter of defence CPAP. XXXIII.] LIBEL. 365 in his said second plea alleged, falsely, wickedly, and mali- ciously wrote and published, and caused to be written and published, so much of the said alleged libels in the said first and fourth counts respectively mentioned, as is in the intro- ductory part of the second plea mentioned, in manner and form as in the said first and fourth counts of iiie said indict- ment is alleged. And this the said coroner and attorney prays may be inquired of by the country, etc. And the said Thomas Latimer doth the like. 2. Indictment for a false defamatory libel.^ The jurors, etc., upon their oath present, that J. S. late of the parish of B. in the county of M., schoolmaster, contriving, and unlawfully, wickedly, and maliciously intending to injure, vilify, and prejudice one J. N., and to deprive him of his good name, fame, credit, and reputation, and to bring him into great contempt, scandal, infamy, and disgrace, on the first day of August in the year of our Lord , with, force and arms, at the parish aforesaid,* in the county aforesaid, unlawfully, wickedly, and maliciously did write and publish, and cause and procure to be written and published,^ a false, scandalous, malicious, and defamatory libel, in the form of a letter directed to the said J. N., or, if the publication ufere in any other manner, omit the words "in the form," etc., containing divers false, scandalous, malicious, and defamatory matters and things of and concerning the said J. N., and of and con- cerning, etc., here insert such of the subjects of the libel as it ' may be necessary to refer to by the innuendoes, in setting out the libel; according to the tenor following, that is to say, here set out the libel, together with such innuendoes as may be neces- sary to render it intelligible; the said J. S. then and there ' Axchbold, (Grim. PI. Am. ed. 1846), 724. For a precedent for a blasphemous libel, see ante, p. 60. ^ This averment is not bad for duplicity. 2 Gabbett, Crim. Law, 234 ; Commonwealth o. TwitcheU, 4 Gushing, 74, 75 ; Commonwealth v. Eaton, 15 Pickering, 273. 31* 366 XIBEL. [chap. XXXIII. well knowing the said defamatory libel to be false ; to the great damage, scandal, and disgrace of the said J. N., to the evil example of all others in the like case offending, and against the peace, etc. 3, Indictment for a libel against a judge andjv/ry, in the execw- tion of their duties?- The jurors, etc., upon their oath present, that heretofore, to wit, at the sittings at nisi prius, holden after Trinity Term, to wit, on the twentieth day of June in the year of our Lord , at Westminster, in the county of Middlesex, before the •Right Honorable Sir Frederick Pollock, chief baron of our said Lady the Queen of her Court of Exchequer at West- minster aforesaid, a certain issue duly joined in the said court between one A. B. and one C. D., in a certain action on promises, in which the said A. B. was plaintiff, and the said C. D. defendant, came on to be tried in due form of law, and was then and there tried by a certain jury of the country in that behalf duly sworn, and taken between the parties afore- said. And the jurors aforesaid, upon their oath aforesaid, do further present, that J. S. late of the parish of B. in the county of M., printer, wickedly and maliciously contriving and in- tending to bring the administration of justice in this kingdom into contempt, and to scandalize and vilify the said Sir Fred- erick Pollock, and the jurors, by whom the said issue was so tried as aforesaid, and to cause it to be believed that, here state the effect of the libel; on the twenty-first day of June in the year last aforesaid, with force and arms, at the parish aforesaid, in the county aforesaid, wickedly and maliciously did write and publish, and cause and procure to be written and published a certain false, wicked, malicious, and scan- dalous libel, of and concerning the administration of justice in this kingdom, and of and concerning the trial of the said issue, and of and concerning the said Sir Frederick Pollock, and the jurors by whom the said issue was so tried as afore- ' Archbold, Crim. H. (Am. ed. 1846), 695. CHAP. XXXm.] LIBEL. 367 said, according to the tenor following, that is to say ; here set out the libely.together with such innuendoes as may be requisite ; to the great scandal and reproach of the administration of justice in this kingdom, in contempt, etc., to the evil example of all others in like case offending, and against the peace, etc. 4. Indictment for slanderous words to a magistrates The jurors, etc., upon their oath present, that heretofore, to wit, on the third day of August in the year of our Lord — ^ — , at the parish of B. in the county of M., one J. S. was brought be- fore J. N., esquire, then and yet being one of the justices of the peace within and for the said county of M., legally authorized and duly qualified to perform and discharge the duties of said office, and the said J. S. was then and there charged before the said J. N., upon the oath of one A. C, that the said J. S. had then lately before feloniously taken, stolen, and carried away divers goods and chattels of the said A. C. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said J. S., wickedly and maliciously intending and con- triving to scandalize and vUify the said J. N. as such justice as aforesaid, and to bring the administration of justice in this Commonwealth into contempt, afterwards, and whilst the said J. N., as such justice as aforesaid, was examining and taking the depositions of divers witnesses against the said J. S. in that behalf, to wit, on the day and year aforesaid, at the parish aforesaid, in the county aforesaid, wickedly and maliciously, in the presence and hearing of divers good citizens of said Commonwealth, did publish, utter, pronounce, declare, and say, with a loud voice to the said J. N., and whilst the said J. N. was so acting as such justice as aforesaid, " You are a scoundrel and a liar ; you would hang your own father if you could make a groat by his execution;" to the great scandal and reproach of the administration of justice in this Com- monwealth, to the great scandal and damage of the said ' Archbdd, Crim. PI. (Am. ed. 1846), 956. 368 LIBEL. [chap. xxxm. J. N.j in contempt, etc., to the evil example of all others in the like case offending, and against the peace, etc.. 5. Indictment for a libel on an attorney?- The jurors, etc., npon their oath present, that J. N., gentle- man, at the time of publishing the false, scandalous, mali- cious, and defamatory libel hereinafter mentioned, was, and long before, and from thence hitherto hath been, and stiU is, one of the attorneys of the Supreme Judicial Court of said Commonwealth, and in the office, practice, and business of an attorney has been, during all that time, retained and era- ployed by diters citizens of said Commonwealth, to prose- cute and defend for them, as their attorney, agent, and solici- tor, divers suits and businesses in the said court, and also to do and negotiate other affairs and business as such attorney, to wit, at the parish of B. in the county of M. ; and the said J. N., during all that time, hath acted in the most fair and honorable manner in the exercise of his said profession, to wit, at the parish aforesaid, in the county aforesaid. And that also, before the publishing of the said false, scandalous, malicious, and defamatory libfel hereinafter mentioned, to wit, on the third day of August in the year of our Lord , at the parish aforesaid, in the county aforesaid, the said J. N. was, in his business and profession of an attorney, employed and retained by one A. C. to commence and prosecute a cer- tain suit and action at law upon the behalf of the said A. C. against one J. S., for the recovery of a certain sum of money then and long before due and owing to the said A. C. from and by the said J. S., and then remaining unpaid ; and the said J. N. in pursuance of the instructions he then and there received from the said A. C. in that behalf, and of his retainer as aforesaid, did then and there commence and prosecute the said action against the said J. S., as in duty he was bound to do ; but the said J. N., in the prosecution of the said action, so far from acting with any unnecessary severity towards the 1 Archbold, Crim. PI. (Am. ed. 1846), 729. CHAP. XXXin.] IIBBL. 369 said J. S., on the contrary thereof, then and there acted towards the said J. S. in as lenient a manner as was conr sistent with his duty as attorney to the said A. C. as afore- said. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said J. S. late of the parish aforesaid, in the county aforesaid, grocer, well ^mowing the premises, but contriving, and wickedly, mahciously, and unlawfully in- tending to aggrieve and vilify the said J. N., and to injure him in bis good name, fame, and credit, and to bring him into public scandal, infamy, and disgrace,* with and amongst all his cKents and neighbors, and other good and worthy citizens of said Commonwealth, and also to injure, the said J. N. in his said business and profession of an attorney, and to cause him to be esteemed and taken to be a negligent and corrupt practiser in his said profession, and to be a person not fit to be intrusted and employed therein, afterwards, to wit, on the tenth day of August in the year last aforesaid, with force and arms, at the parish aforesaid, in the county aforesaid, falsely, wickedly, and maliciously did write and publish, and cause and procure to be written and published, in the form of a let- ter directed to the said A. C, a certain false, wicked, mali- cious, and scandalous libel of and concerning the said J. N., and of and concerning his conduct in his business and pro- fession of attorney, and of and concerning the said action, so commenced and prosecuted against the said J. S. by the said J. N., for and as the attorney of the said A. C. as aforesaid, and of and concerning the conduct of the said J. N. as attorney in the said action, according to the tenor following, that is to say, here set out the libel, with such innuendoes as may be neces- sary ; to the great scandal, infamy, and disgrace of the said J. N., to the evil example of all others in the like case offend- ing, and against the peace, etc. 6. Indictment for hanging a man in effigy?- Commencement as in precedent number two to the asterisk, > Archbold, Crim. PI. (Am. ed. 1846), 730. 370 LIBEL. [chap. XXXIII. and then as follows : in the county aforesaid, unlawfully, wickedly, and maliciously did make, and cause and procure to be made, a certain gibbet and gallows, and also a certain effigy and figure, intended to represent the said J. N. ; and then and there unlawfully, wickedly, and maliciously did erect, set up, and fix, and cause and procure to be erected, set up, and fixed, the said gibbet and gallows, in a certain yard and place near unto a certain common highway, there situate, called , and near to a certain ferry called the Horse Ferry, where the said J. N. was used and accustomed to ply in the way of his trade and business of a waterman ; and then and there unlawfully, wickedly, and maliciously did hang up and suspend, and cause and procure to be hung up and suspended, the said effigy and figure, to and upon the said gibbet and gaUows, with the name of the said J. N. in- scribed on a piece of wood, and affixed to the said effigy and figure, together with divers scandalous inscriptions and de- vices affixed upon and about the same, reflecting on the char- acter of the said J. N. ; and did then and there keep and continue, and cause and procure to be kept and continued, the said gibbet and gallows, so erected and set up as afore- said, with the said effigy and figure hung up and suspended to and from the same, as aforesaid, together with the several inscriptions and devices aforesaid, so affixed as aforesaid, for a long space of time, to wit, for the space of four days then next following, and during all that time unlawfully, wickedly, and maliciously did then and there publish and expose the said gibbet and gallows with the said effigy and figure thereon, to the sight and view of divers good and worthy cit- izens of said Commonwealth, passing and repassing in and along the highway aforesaid ; to the great scandal, infamy, and disgrace of the said J. N., to the evil example of all others in the like case offending, and against the peace, etc. CHAPTER XXXIV MAINTENANCE. " Both species of this crime are," says Professor Greenleaf, " in some form or other, forbidden by statutes, in nearly all of the United States ; but the common law is still conceived to be in force, where it has not been abrogated by statute. The indictment charges, in substance, that the defendant unjustly and unlawfully maintained and upheld a certain suit, pend- ing in a certain court, describing it, to the manifest hinderance and disturbance of public justice." ^ Prosecutions for main- tenance are now very rarely instituted; for a number of persons are generally implicated in this offence, and then the common practice is, to indict them for a conspiracy. « Indictment for maintenance. The jurors, etc., upon their oath present, that C. D. late of B. in the county of S., yeoman, on the first day of June in the year of our Lord , at B. aforesaid, in the county afore- said, did unjustly and unlawfully maintain and uphold a cer- tain suit, which was then and there in the, here describe the court in which the action was then pending;hei;ween one E. F., plaintiff, and one J. N., defendant, in an action of contract, on behalf of the said E. F., against the said J. N., and then and there in and for the maintenance of said suit, did expend ' 3 Greenleaf on Ev. § 180, 181 ; 2 Deacon, Crim. Law, 843 ; 1 Gabbett, Crim.-Law, 142 ; 1 Starkie, Crim. PL (London ed. 1828), 158. 372 MAINTEKANCB. [cHAP. XXXIII. a large sum of money, to wit, the sum of one thousand dol- lars ; to the manifest hinderance and disturbance of justice, to the great damage of the said J. N., against the peace, etc., and contrary to the form of the statute in such case made and provided. CHAPTER XXXV. MALICIOUS MISCHIEF AND ■WOiFUL TRESPASS. 1. Indictment for kiUinff a horse. — Mass. Rev. Sts. ch. 126, § 39. The jurors, etc., upon their oath present, that C. D. late of B. in the county of S., laborer, on the first day of June in the year of our Lord , with force and arms, at B. aforesaid, in the county aforesaid, a certain horse, (" any horses, cattle, or other beasts," ) of the value of one hundred doUars, of the property of one A. B., then and there wilfiiLly and maliciously did kiU ; against the peace of said Commonwealth, and con- trary to the form of the statute in such case made and pro- vided. 2. For maimiTig a horse. — Mass. Rev. Sts. ch. 126, § 39. The jurors, etc., upon their oath present, that C. D. late of B. in the county of S., laborer, on the first day of June in the year of our Lord , with force and arms, at B. aforesaid, in the county aforesaid, with a certain sharp instrument, called a bill-hook, wilfully and maliciously did strike a cer-. tain horse, of the value of one hundred dollars, of the goods and chattels of one A. B., in and upon the left shoulder of the said horse, giving to the said horse thereby then and there, by such striking as aforesaid, in and upon the said left shoulder _of the said horse, one deep wound, of the breadth of five inches, and of the depth of four inches, and thereby did 32 374 MALICIOUS MISCHIEr, ETC. [CHAP. XXXV. then and there wilfully and maliciously maim the said horse ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. 3. For poisoning a horse. — Mass. Rev. Sts. ch. 126, § 39.^ The jurors, etc., upon their oath present, that C. D. late of B. in the county of S., laborer, on the first day of June in the year of our Lord , with force and arms, at B. aforesaid, in the county aforesaid, wilfully and maliciously did admin- ister to a certain horse, of the value of two hundred dollars, of the property of one E. F., a large quantity, to wit, two drachms, of a certain poison called arsenic ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. 4. For heating a horse. — Rev. Sts. of Mass. ch. 130, § 22,2 The jurors, etc., upon their oath present, that C. D. late of B, in the county of S., laborer, on the first day of June in the year of our Lord , with force and arms, at B. aforesaid, in the county aforesaid, unlawfully and cruelly did beat and torture a certain horse, of the property of the said C. D. ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. * This is an offence at common law. Commonwealth v. Leach, 1 Massa- chusetts, (Rand's ed.), 69. If a person mix. poison with the com intended ioT the feed of eight horses, and then gives each horse his feed from this mixture, an indictment, charging that he did administer the poison to the ei^t horses, is correct. Rex v. Mogg, 4 Carrington & Payne, 364. ' See Regina v. Whiteman, 25 Eng. Law and Eq. Reps. 590, and editor's note. CHAP. SXXV.] MALICIOUS MISCHIEF, ETC. 375 5. For exposing a poisonous substance with intent that it should be taken and swallowed by a horse. — Mass. Rev. Sts. ch. 126, § 39. The jurors, etc., upon their oath present, that C. D. late of B. in the county of S., laborer, on the first day of June in the year of our Lord , with force and arms, at B. afore- said, in the county aforesaid, wilfully and maliciously did expose to a certain horse, of the value of one hundred dol- lars, of the property of one A. B., a certain poisonous sub- stance, that is to say, two drachms of arsenic, with intent that the said poisonous substance should be then and there taken and swallowed by the said horse ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. 6. For injuring a horse by shooting him. — Mass. Rev. Sts. ch. 126, § 30.1 The jurors, etc., upon their oath present, that Robert "Wal- den, late of B. in the county of S., laborer, on the first day of June in the year of our Lord , with force and arms, at B. aforesaid, in the county aforesaid, a certain mare, of the value of fifty dollars, of the goods, chattels, and personal property of one Robert Noble, did then and there wilfully and maliciously injure, by then and there wilfuUy. and mali- ciously shooting and discharging a certain gun, which gun was then and there loaded with powder and leaden shot, at and against the said mare, whereby the said mare was then and there severely wounded in the side, hip, and shoul- der of the said mare ; and thereby was greatly injured and rendered of little value ; against the peace of said Common- wealth, and contrary to the form of the statute in such case made and provided. 1 Commonwealth v. Walden, 3 Gushing, 558. 376 MALICIOUS MISCHIEF, ETC. [CHAP. XXXV. 7. For breaking down a dam. — Mass. Rev. Sts. ch. 126, § 40. The jurors, etc., upon their oath present, that C. D. late of B. in the county of S., laborer, on the first day of June in the year of our Lord , with force and arms, at B. in the county of S., wilfully and maliciously did break down, in- jure, and destroy a certain dam there situate, of the value of one thousand dollars, of the property of one A. B. ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. 8. For destroying the machinery of a water-mill. — Mass. Rev. Sts. ch. 126, § 40. The jurors, etc., upon their oath present, that C. D. late of B. in the county of S., laborer, on the first day of June in the year of our Lord , with force and arms, at B. afore- said, in the county aforesaid, a certain belt of the value of five dollars, of the property of one A. B., the same then and there being a part of the machinery of a certain water-miU, of the property of the said A. B. there situate, then and there wilfully and maliciously did cut, injuje, and destroy ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. 9. For drawing off the water contained in a mill-pond. — Mass. Rev, Sts. ch. 126, § 40. The jurors, etc., upon their oath present, that C. D. late of B. in the county of S., laborer, on the first day of June in the year of our Lord , with force and arms, at B. aforesaid, in the county aforesaid, wilfully, wantonly, and without color of right, did draw off the water, of the value of one thousand dollars, of the property of one A. B., then and there contained in a certain mill-pond there situate, of the property of the said A. B. ; against the peace of said Commonwealth, ^n d contrary to the form of the statute in such case made^nd provided. CHAP. XXXV.J MALICIOUS MISCHIEF, ETC. 377 10. For cutting down an ornamental tree. — Mass. Rev. Sts. ch. 126, § 42. The jurors; etc., upon their oath present, that C. D. late of B. in the county of S., laborer, on the first day of June in the year of our Lord , -with force and arms, at B. afore- said, in the county aforesaid, a certain elm-tree not his own, of the value of ten dollars, of the property of one A. B., then and there standing and growing for shade and ornament, then and there wilfully, and maliciously, wantonly, and without cause, did cut down, injure, and destroy ; against the peace ' of said Commonwealth, and contrary to the form of the statute in such case made and provided. 11. For destroying a tree growing in a cemetery. — Mass. St. 1841, ch. 114, § 6. The jurors, etc, upon their oath present, that C. D. late of B. in the county of S., laborer, on the first day of June in the year of our Lord — — , with force and arms, at B. afore- said, in the county aforesaid, one willow tree, of the value of ten dollars, of the property of one J. N., then and there placed within the limits of a certain cemetery there situate, unlawfully, wilfully, and maliciously did deface, injure, and destroy ; against the peace of said Commonwealth, and con- trary to, etc. , 12. For breaking glass in a building. — Mass. Rev. Sts. ch. 126, § 42. The jurors, etc., upon their oath present, that C. D. late of B. in the county of S., laborer, on the first day of June in the year of our Lord ■—, with force and arms, at B. aforesaid, in the county aforesaid, wilfully, maliciously, wantonly, and without cause did break and destroy the glass, to wit, ten panes of window glass, each of the value of one dollar, of the property of one A. B., in a certain building there situate, *32 378 MALICIOUS MISCHIEP, ETC. * [cHAP. XXXV. not his the said C. D.'s own, but which building then and there belonged to and was the property of the said A. B., the said glass then and there being parcel of the realty, to wit, of the building aforesaid ; ^ against the peace of said Com- monwealth, and contrary to the form of the statute in such case made and provided. 13. For breaking down a fence. — Mass. Rev. Sts. ch.' 126, § 42. The jurors, etc., upon their oath present, that C. D. late of B. in the county of S., laborer, on the first day of June in the year of our Lord , with force and arms, at B. aforesaid, in the county aforesaid, maliciously did break down, injure, mar, and deface a certain fence, of the value of fifty dollars, of the property of one A. B., then and there belonging to and- inclosing a certain parcel of land there situate, not his the said C. D.'s own, but which land was then and there the property of the said A. B., the said fence then and there being parcel of the realty, to wit, of the land aforesaid; thereby then and there by committing the trespass as afore- said, doing injury to the said A. B. to an amount exceeding the sum of fifteen dollars, to wit, the sum of fifty dollars ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. 14. For breaking down a guideboard. — Mass. Rev. Sts. ch. 126, § 43. The jurors, etc., upon their oath present, that C. D. late of B. in the county of S., laborer, on the first day of June in the year of our Lord , with force and arms, at B. aforesaid, in the county aforesaid, a certain guideboard, of the value of five dollars, of the property of the inhabitants of the town of B., in the county aforesaid, erected upon a certain high- ' This is a necessary allegation. Commonwealth v. Bean, The Monthly Law Reporter, vol. 6, N. s. 387. CHAP. XXXV.J MALICIOUS MISCHIEF, ETC. 379 way, there, wilfully and maliciously did break down, injure, and destroy ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. 15. For cutling down a timber tree. — Mass. Rev. Sts. ch. 126, § 44. The jurors, etc., upon their oath present, that C. D. late of B. in the county of S., laborer, on the first day of June in the year of our Lord , with force and arms, at B. aforesaid, in the county aforesaid, wilfully did commit a trespass by then and there unlawfully, wilfully, and maliciously cutting- down certain timber, to wit, one oak tree, of the value of ten dollars, of the property of one J. N., then standing and growing on the land of the said J. N. there situate, the said C. D. then and there not having any interest or property in the said tree, and the said C. D. not being then and there first licensed by the said J. N. to cut the same as aforesaid ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. 16. For destroying plants, etc., in a garden, on the LorWs day. — Mass. Rev. Sts. ch. 126, § 45. The jurors, etc., upon their oath present, that C. D. late of B. in the county of S., laborer, on the first day of June in the year of our Lord , the same being the Lord's day, with force and arms, at B. in the county of S., wilfully did commit a trespass, by then and there on the said Lord's day, enter- ing on the garden of one J. N. there situate, without the permission of the said J. N., the owner *of the said garden, with intent then and there the fruit, to wit, fifty pounds weight of grapes, of the value of fifty cents each pound, of the property of the said J. N., then and there growing and being in the garden aforesaid, unlawfully and maliciously to cut, take, and carry away; against the peace of said 380 MALICIOUS MISCHIBP, ETC. [CHAP. XXXV. Commonwealth, and contrary to the form of the statute in such case made and provided. 17. For malicious injv/ry to ice taken as an article of merchan- dise. — Mass. Rev. Sts. 1850, ch. 114. The jurors, etc., upon their oath present, that on the first day of January in the year of our Lord , there was and yet is a certain pond of water called Fresh Pond, situate at C. in the county of M., of the property of one J. N,, from the waters of which pond, on the said first day of January in the year aforesaid, ice was taken by the said J. N. as an article of merchandise. And the jurors aforesaid, upon their oath aforesaid, do further present, that C. D. late of C. in the county of M., laborer, on the said first day of January in the year aforesaid, with force and arms, at C. aforesaid, in the county aforesaid, well knowing the premises, the ice then and there being upon the waters aforesaid, wilfully, maliciously, and without right or license, did cut, injure, mar, damage, and destroy, whereby the taking of the ice aforesaid, was then and there hindered, and the value of the same was then and there diminished as an article of merchandise as aforesaid ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. 18. For destroying; by explosion, a dwelling-house. — Mass. St. 1851, ch. 129, § 1. The jurors, etc., upon their oath present, that C. D. late of B. in the county of S., laborer, on the first day of June in the year of our Lord — , with force and arms, at B. aforesaid, in the county aforesaid, by the explosion of a certain explosive substance, that is to say, gunpowder, the dwelling-house of one A. B. there situate, feloniously, wilfully, and maliciously did unlawfully destroy ; against the peace of said Common- wealth, and contrary to the form of the statute in such case made and provided. CHAP. XXXV.J MALICIOUS MISCHIEF, ETC. 381 19. For exploding gunpowder in a house, with intent, etc. Mass. St. 1851, ch. 129, § 2. The jurors, etc., upon their oath present, that C. D. late of B. in the county of S., laborer, on the first day of June in the year of our Lord , with force and arms at B. aforesaid, in the county aforesaid, feloniously^ wilfully, and maliciously did explode in the dwelling-house of one A. B. there situate, a certain explosive substance, that is to say, gunpowder, with intent thereby then and there one J. N., in the said dwelling- house then and there being, feloniously, wilfully, and mali- ciously to injure and destroy ; against the peace of said Com- monwealth, and contrary to the form of the statute in such case made and provided. 20. For defacing a dwelling-house, by throwing filthy sub- stances into it. — Mass. St. 1851, ch. 129, § 3. The jurors, etc., upon their oath present, that C. D. late of B. in the county of M., laborer, on the first day of June in the year of our Lord , with force and arms, at B. afore- said, in the county aforesaid, feloniously, wilfully, and mali- ciously did throw into the dwelling-house of one A. B. there situate, a large quantity of a certain filthy substance, that is to say, one barrel of coal tar, with intent thereby then and there feloniously, wilfully, and maliciously the said dwelling- house unlawfully to injure, deface, and defile; against the peace of said Commonwealth, and contrary to the foi;m of the statute in such case made and provided. 21. For attempting to obstruct engines and carriages passing upon a railroad. The jurors, etc., upon their oath present, that C. D. late of B. in the county of M., laborer, on the first day of June in the year of our Lord — -. — , with force and arms, at B. in the county of M., feloniously, wilfully, and maliciously contriving 382 MALICIOUS MISCHIEF, ETC. [CHAP. XXXV. and intending the engines and carriages, of the property of the Boston and Worcester Raihroad Corporation, then and there lawfully passing over and along the railroad of said corpora- tion, there located and situate, to obstruct, with intent then and there the safety of divers persons then and there lawfully riding, passing, and being conveyed over and along said railroad, at B. aforesaid, in the county aforesaid, in and upon the engines and carriages aforesaid, to endanger, did, on the first day of June in the year of our Lord , at B. aforesaid, in the county aforesaid, feloniously, wilfuUy, and maliciously place and put upon and across said railroad there situate, one iron rail, whereby the said engines and carriages were then and there in great danger of being obstructed, and the safety of divers persons then and there lawfully riding, passing, and being conveyed in and upon the said engines and carriages as aforesaid, were then and there greatly endangered ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. 22. For obstructing engines, etc. The jurors, etc., upon their oath present, that C. D. late of B. in the county of M., laborer, on the first day of June in the year of our Lord , with force and arms, at B. afore- said, in the county aforesaid, feloniously, wilfully, and mali- ciously, the engines and carriages, of the property of the Bos- ton and Worcester Railroad Corporation, then and there law- fully passing over and along the railroad of said corporation, there located and situate, did obstruct, by then and there, state the mode of obstruction, and the safety of divers persons then and there lawfully riding, passing, and being conveyed over and along said railroad, at B. aforesaid, in the county afore- said, in and upon the engines and carriages aforesaid, then and there did endanger ; against the peace of said Common- wealth, and contrary to the form of the statute in such case made and provided. CHAP. XXXV.] MALICIOUS MISCHIEF, ETC. 383 23. For throwing a stone against a railroad carriage, ivith intent, etc. The jurors, efc, upon their oath present, that C. D. late of, etc., on the first day of June in the year of our Lord , with force and arms, at F. in the county of M., wilfully and mali- ciously did cast and throw a stone into a certain carriage, of the property of the Boston and Worcester E-ailroad Corpora- tion, then and there lawfully passing over and along the rail- road of said corporation, there located and situated, with in- tent thereby then and there the safety of divers persons then and there lawfully riding and passing, and being conveyed over and along said railroad, at F. aforesaid, in the county aforesaid, in and upon the carriage aforesaid, to endanger ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. CHAPTER XXXVI. MAYHEM. Indictment for mayhem by slitting the nose. — Rev. Sts. of Mass. ch. 125, § lO.i The jurors, etc., upem their oath present, that C. D. late of B. in the county of S., laborer, on the first day of June in the year of our Lord , with force and arms, at B. aforesaid, in the county aforesaid, the said C. D. being then and there armed with a certain dangerous weapon, to wit, a knife, with malicious intent the said J. N. then and there to maim and disfigure, in and upon the said J. N. feloniously did make an assault ; and that the said C. D,, with the said knife, the no^e of the said J. N. then and there feloniously and maliciously did cut and slit, with malicious intent then and there and thereby, in manner aforesaid, the said J. N. then and there, to maim and disfigure; against the peace of said Common- wealth, and contrary to the form of the statute in such case made and provided. • This is not a felony, at common law. Commonwealth v. Newell, 7 Mas- sachusetts, (Band's ed.), 244. CHAPTER XXXVII. NUISANCE. The indictment for this offence states the facts which form the subject of the cheirge,! alleging it to be to the common nuisance of all the citizens of the State, or Commonwealth.^ But if the subject be one which in its nature necessarily tends to the injury of all the citizens, such as obstructing a river described as a public navigable rivei", or a way described as a public highway, or the like, it is said to be sufficient with- out any more particular allegation of common nuisance.^ 1. Nuisance by deleterious smoke and vapors.^ The jurors, etc., upon their oath present, that C. D. late of, etc., on the first day of June in the year of our Lord , and on divers other days and times between that day and the day of the finding of this indictment, at B. in the county of S. unlawfully and injuriously did erect, and cause and procure to be erected, certain furnaces and ovens for the burning of coke, and did then and there unlawfully and injuriously cause • Rex V. "Wiite, 1 Burrow, 333. " The offence should be stated to be a common nuisance to all the citizens. Commonwealth v. Faris, 5 Eandolph, 691 ; Graffins v. The Commonwealth, 3 Pennsylvania Eep. 502 ; Hayward's case, Croke Eliz. 148. And see 1 Gabbett, Crim. Law, 762; 1 Hawkins, P. C. ch. 33; Regina v. Webb, 1 Denison, C. C. 338. » 3 Greenleaf on Ev. § 185 ; 1 Hawkins, P. C. ch. 75, § 3, 4, 5. * 6 Cox, C. C. Appendix, p. Ixxvi. See Rex v. Davey, 5 Esp. 216. « 33 386 NUISANCE. [chap. XXXVII. and permit great quantities of smoke and of sulphurous and other noxious, unwholesome, and injurious vapor to arise from the said furnaces, and then and there to impregnate the air near and around the said furnaces, and then and there to enter the dwelling-houses there situate near the said furnaces ; to the great damage and common nuisance of all persons then and there living and inhabiting near the said furnaces, and of all other persons then and there passing near the same. 2. Nuiscmce by rendering water vnfil to drink} The jurors, etc., upon their oath present, that C. D, late of, etc., on the first day of June in the year of our Lord , and on divers other days and times between that day and the day of the finding of this indictment, at B. in the county of S., did unlawfully and injuriously convey, and cause and suffer to be drained and conveyed, great quantities of noxious and offen- sive liquid matters, scum, and refuse, produced from the mak- ing of gas and of coal-tar and coke, from certain premises of the said C. D. there situate, into a certain ancient stream of pure water there situate and flowing, and did thereby then and there corrupt and render unwholesome the water of the said stream, and make the same unfit to drink; to the great injury and common nuisance of all persons then and there residing near the said stream, and of aU other persons then and there using the water thereof, and against the peace, etc. 3. Nuiscmce by diverting a watercourse.^ The jurors, etc., upon their oath present, that C. D. late of, etc., on the first day of June in the year of our Lord , and on divers other days and times between that day and the finding of this indictment, at B. in the county of S., unlaw- fully and injuriously did divert and turn out of its ancient ' 6 Cox, C. C. Appendix, Ixxvi. See Rex v Medley, 6 Carrington & Payne, 229. * 6 Cox, C. C. Appendix, p. Ixxvi. CHAP. SXXVn.J NUISANCE. 387 and accustomed channel and course, and cause and procure to be diverted, a certain ancient common watercourse and common stream of water there situate, and did then and therft malce and place, and cause and procure to be made and placed, a dam and embankment across the said stream, and did then and there and thereby deprive the inhabitants of said B., and all other persons using the said stream of water and watercourse, of the said water; to the great damage and common nuisance of the said inhabitants, and other persons, and against the peace, etc. 4. Against a parent for not giving his deceased child a Christian burial} The jurors, etc., upon their oath present, that whereas here- tofore, to wit, on the eighteenth day of August in the year of our Lord , William Vann late of the parish of Saint. Margaret in the borough of Leicester, laborer, was the father of a certain child then lately deceased, and had then and there the care and custody of the dead body thereof. And whereas on the day and year aforesaid, at the parish afore- said in the borough aforesaid, it became and was the duty of the said William Vann the father of the said child lately deceased as a.foresaid, the dead body thereof to bury and inter according to the rules of public decency, the said W. V. then and there having ample and sufficient money and means to defray the necessary expenses of said burial and interment. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said William Vann having as aforesaid the care and custody of the dead body of his child then lately deceased, afterwards, to wit, on the nineteenth day of August and at divers other times in the year aforesaid, at the parish ^ 1 A man is bound to give Christian burial to his deceased child, if he has the means of doing so ; but he is not liable to be indicted for a nuisance, if he has not the means of proyiding burial for it. Begina v. Vjuin, 2 Denison, C. C. 325; 5 Cox, C. C. 379; 8 Eng. Law and Eq. Hep. 569. And see Ambrose v. Eerrison, 4 Eng. Law and Eq. Rep. 361. 388 NUISANCE. [chap. XXXVII. aforesaid, in the borough aforesaid, with force and arms, against his duty in that respect the said dead body did unr lawfully, wrongfully, and wilfully refuse, omit, and neglect to bury and inter, whereby and by reason of the decomposition of the said dead body while in his care and custody as afore- said, and while remaining unburied in the dwelling-house of the said William Vann there situate and being, divers, various, and noxious and unwholesome smells and stenches did then and there arise and issue therefrom, and thereby the air was greatly infected and corrupted, and was^reindered and became for several days offensive, unwholesome, injurious, and dan- gerous to health ; to the great damage and common nuisance of all the citizens of said State, there inhabiting, being, and residing, and going, returning, and passing, to evil example of all others in like case offending, against the peace, etc. Second Count. — And the jurors aforesaid, upon their oath aforesaid, do further present, that "WiUiam Vann late of the parish of Saint Margaret in the borough of Leicester, laborer, on the twentieth day of August in the year of our Lord , having the care and custody of the dead body of a cer- tain child then lately deceased, to wit, of the child of the said WiUiam Vann, on the day and year last mentioned, at the parish aforesaid, in the borough aforesaid, the said dead body, with force and arms, and against his duty in that respect, unlawfully did refuse, omit, and neglect to bury, the said W. V. then and there having sufficient money and means to defray the necessary expenses of the burial and interment of said body, and the said dead body did then and there remove from the dwelling-house of the said WUliam Vann there situate, to a certain public place, to wit, a public yard there situate, near to and adjoining divers public streets being the common highways, and also near to and adjoining the dwelling-houses of divers citizens of said State, there situate, and the said body so removed as aforesaid and so as afore- said in his care and custody, did then and there unlawfully and injuriously permit and cause to be and remain in the said public yard there situate as aforesaid, for a long space of time, to wit, for and during the space of six days, whereby and by CHAP. XXSVn.] NUISANCE. 389 reason of the noxious smells, stenches, and vapors arising and issuing from the said dead body during the time afore- said, the air became and was greatly infected and corrupted, and became and was rendered offensive, injurious, and un- wholesome ; to the great damage and common nuisance not only of all the citizens of said State, then and there being, inhabiting, and dwelling, but also of all other citizens of said State, near there being, inhabiting, and dwelling, but also of all other citizens of said State, in, by, and through the said public yard, and in, by, and through the other said public streets and highways near thereto going, returning, passing, repassing, and laboring, to the evil example of others in like case offending, and against the peace, etc. Third Count. — And the jurors aforesaid, upon their oath aforesaid, do further present, that William Vann, late of the parish of Saint Margaret, in the borough of Leicester, laborer, on the day and year last before mentioned,, having the care and custody of the dead body of a certain child then lately deceased, to wit, the child of the said William Vann,' at the parish aforesaid, in the borough aforesaid, the said dead body, with force and arms, did unlawfully, wilfully, and against his duty in that respect, omit, neglect, and refuse to bury the said dead body, unlawfully, injtiriously, and against the rules of public decency in that respect in a certain public place, to wit, a public yard, there being and situate, and near unto divers public streets, being the common highways, and also near unto the dwelling-houses of divers citizens of said State, there situate and being, did then and there keep and retain, and cause to be kept and retained, for the space of several days, and the said dead body so kept and retained by the said William Vann as aforesaid, became and was putrid, by reason of which said premises and during the time aforesaid, divers noxious, unwholesome, afld offensive smells, stenches, and vapors, were from thence emitted and issued, so that thereby the air then and there was rendered and became offensive, injurious, and unwholesome, and thereby continued during the time aforesaid to be offensive, injurious, and un- wholesome ; to the great damage and common nuisance of 33* 390 NUISANCE. [chap., xxxvh. all the citizens of said State, there inhabiting, being, and residing and going, returning and passing through the said streets and highways, and against the peace, etc. 5. For bringing a horse infected with the glanders into a pub- lic place?- First Cownt. — The jurors, etc., present, that James Hen- son, late of Melton Mowbray, in the county of Leicester, laborer, on the first day of June in the year of our Lord , at Melton Mowbray aforesaid, in the county aforesaid, was possessed of a certain mare, which said mare was then and there infected with a contagious, infectious, and dangerous disease called the glanders, which disease was then and there communicable to man, as the said J. H. then and there knew, and the said James Henson well knowing the premises after- wards, and whilst the said mare was so infected as aforesaid, on the day and year aforesaid, with force and arms at Melton Mowbray aforesaid, in the county aforesaid, unlawfully, wil- fully, wickedly, and injuriously did bring and cause to be brought, the said mare so infected as aforesaid, into and along a certain open public way and place, on which then of right, were divers citizens of said State, then going, passing, and staying, and amidst and among divers citizens of said State, who were then and there in the said public way and place, to the great danger of infecting with the said contagious, infec- tious, and dangerous disease called the glanders, the citizens of said State, who on the said day and time, were in and near the said public way and place, to the damage and com- mon nuisance of all the said citizens of said State ; to the evil example of all others in the Uke case offending, and against the peace, etc. Second Count. — And the jurors aforesaid, upon their oath ^ An indictment which alleged that the defendant knew that a mare \Thich he brought into a fair, was glandered, was, after verdict, held good, without an averment that the glanders was a disease communicable to man. Kegina V. Henson, Pearce, C. C. 24 ; 18 Eng. Law and Eq. Kep. 107. CHAP. XXXVn.] NTJISANCB. 391 aforesaid, do farther present, that afterwards, to wit, on the day and year aforesaid, at Melton Mowbray aforesaid, in the county aforesaid, the said James Henson was possessed of a certain other mare, which said last-mentioned mare was then and there infected with a contagious, infectious, and danger- ous disease, to wit, a disease called the glanders, which disease was then and there communicable to man, as the said J. H. then and there well knew, and that the said James Henson, well knowing the premises last aforesaid, and whilst the said last-mentioned mare was so infected as aforesaid, on the day and year aforesaid, with force and arms at Melton Mowbray aforesaid, in the county aforesaid, unlawfully, wickedly, and injuriously, did bring and cause to be brought, the said last-mentioned mare so infected, as aforesaid, into a certain fair called the Melton Mowbray Whitsun Fair, during the period when the citizens of said State were then and there holding the said fair, which was then and there public and open to aU the citizens of said State, for the purpose of buying and selling horses, and other cattle therein, and that the said James Henson well knowing the premises, as last aforesaid, then and there kept, and continued to keep the said mare so infected, as aforesaid,' for a long space of time, to wit, for the space of one hour, then next following, and in which said fair then, of right, were divers horses and other cattle of certain citizens of said State, then and there pass- ing and being, by means of which said several last-mentioned premises, the said last-mentioned horses and other cattle so passing, and being along and in the said fair, became and were liable to be infected by the contagious, infectious, and dangerous disease with which the said mare of the said James Henson was so infected, as aforesaid ; to the damage and common nuisance of the citizens of said State, frequent- ing the said fan-, and using the same for the purpose of buy- ing and selling horses, and other cattle therein, to the evil example of all others in the like case offending, and against the peace, etc. Third Count. — And the jurors aforesaid, upon their oath aforesaid, do further present, that afterwards, to wit, on the 392 • NUISANCE. [chap, xxxvn. day and year aforesaid, at Melton Mowbray aforesaid, in the county aforesaid, the said James Henson was possessed of a certain other mare, which last-mentioned mare was then and there infected with a contagious, infectious, and dangerous disease, to wit, a disease called the glanders, which disease was then and there communicable to man, as the said J. H. then and there well knew, and that the said James Henson, well knowing the last-mentioned premises, afterwards and whilst the said last-mentioned mare was so infected as afore- said, on the day and year aforesaid, Avith force and arms at Melton Mowbray aforesaid, in the county aforesaid, unlaw- fully and injuriously did bring and cause to be brought, the said last-mentioned mare so infected as aforesaid, into a cer- tain open and public way and place, called the Burton End, in Melton Mowbray aforesaid, in which public way and place there were divers other horses and other cattle of certain citi- zens of said State, then and there passing and being, and that the said James Henson, well knowing the premises aforesaid, then and there kept and continued the said mare of which the said James Henson was so possessed, as last afore- said, and which was then and there so infected as aforesaid, for a long space of time, to wit, for the space of one hour then next following, during all which time, there were divers other horses and other cattle of certain citizens of said State, then and there passing and being, by means of which said several last-mentioned premises, the said horses and other cattle so passing and being along and in the said open and public way and place, became and were liable to be infected by the contagious, infectious, and dangerous disease, with which the said mare of the said James Henson, was so in- fected as aforesaid ; to the damage and common nuisance of the citizens of said State, then having horses and other cattle in the said open and public way and place, to the evil example of all others in the like case offending, and against the peace, etc. CHAP. XXXVn.] NUISANCE. •393 6. Nuisance for carrying on a trade offensive to the smell} The jurors, etc., upon their oath present, that C. D. late of, etc., on the first day of June in the ycEir of our Lord , and on divers other days and times between that day and the finding of this indictment, at B. in the county of S., unlaw- fully and injuriously did kill, and cause to be killed, divers large numbers of horses, near to the dwelling-houses of divers persons then and there inhabiting the same houses, and also near to a certain public road and highway there ; and then and on the said other days and times, at B. aforesaid, in the county aforesaid, unlawfully and injuriously did cause and permit the skins, flesh, bones, blood, entrails, excrements, and other filth of and firom the said horses so killed as aforesaid, to lie and remain near to the said dwelling-houses and near to the said public road and highway for a long space of time, to wit, for the space of one week, whereby divers noisome and unwholesome smells did then and there arise firom the said skins, flesh, bones, blood, entrails, excrements, and other filth, so that the air was then and there greatly corrupted and infected thereby ; to the great damage and common nuisance of the inhabitants of the said houses, and of all other persons then and there passing upon and along the said public road and highway. 7. Against a town for not repairing a highway. The jurors, etc., upon their oath present, that on the first day of June in the year of our Lord , there was and yet is a common public highway leading from the town of B. in said county, to C in said county,^ used by and for ' 6 Cox, C. C. Appendix, p. Ixxvii. ' It is unnecessary to describe the termini of the way. Kex u. St. Weonards, 6 Carrington & Payne, 582 ; Rex v. Haddock, Andrews, 145 ; Common- wealth V. Hall, 15 Massachusetts, (Rand's ed.), 239 ; Commonwealth v. Allen, 11 Metcalf, 403, 405. If the way be described as leading from A. 394 NUISANCE. [chap, xxxvn. all the citizens of said Commonwealth, with their horses, coaches, carts, and other carriages, to go, return, pass, re- pass, ride, and labor, at their freewill and pleasure. And the jurors aforesaid, upon their oath aforesaid, do further present, that a certain part of the said common public highway, situated at D. in the county aforesaid, extend- ing from a certain field there, called , unto a certain bridge there, caUed bridge, containing in length forty yards, and in breadth eight yards,^ on the first day of June in the year of our Lord , and continually after- wards until the day of the taking of this inquisition, at D. aforesaid, in the county aforesaid, was and is yet very ruin- ous, miry, deep, broken, and in great decay, for want of due reparation and amendment of the same, so that the citizens of said Commonwealth, during the time aforesaid, could not go, return, pass, repass, ride, and labor with their horses, coaches, carts, and other carriages, in, through, and along the common pubKc highway aforesaid, as they ought and were wont and accustomed to do, without great danger of their lives, and the loss of their goods. And the jurors aforesaid, upon their oath aforesaid, do further present, that the inhabi- tants of the said town of D. in the county aforesaid, during all the time aforesaid, in their corporate capacity, the said com- mon highway ought to have kept in repair and amended when and so often as it should be necessary, but have neg- lected, and still neglect so to do ; to the great damage and unto B., the termini A. and B. are excluded. B«gina v. Botfield, Carrington & Marshman, 157 ; Kex v. Gamlingay, 1 Leach, C. C. (4th London ed.), 528 ; 3 Term B. 513 ; Hammond v. Brewer, 1 Barrow, 376. See Be^na v. Turweston, 1 Eng. Law and Eq. Rep. 31 7 ; 4 Cox, C. C. 349 ; Bex v. Mar- chioness of Devonshire, 4 Adolphus & Ellis, 234 ; 6 Neville & Manning, 662 ; Regina v. Steventon, 1 Carrington & Kirwan, 55 ; Rex v. Upton, 6 Carrington & Payne, 133. ' The indictment must show with certainty the part of the road which is out of repair, and the number of yards, or rods, in length, and in breadth. 1 Hawkins, P. C. ch. 76, § 88, 89 ; 1 Starkie, Crim. PI. (London ed. 1828), 154 ; and that it is within the town bound to repair it. Rex v. Upton, 6 Car- rington & Payne, 133. CHAP, xxxvn.} NUISANCE. 395 common nuisance of all the citizens of said Commonwealth, then and there going, returning, passing, repassing, riding, and laboring, in, through, and along the comipon public high- way aforesaid, and against the peace, etc. 8. For keeping a disorderly housed The jurors, etc., upon their oath present, that C. D. late of B. in the county of M., laborer, on the.first day of June in the year of our Lord , at B. aforesaid, in the county afore- said, and on divers other days and times between that day and the day of the finding of this indictment,^ at B. aforesaid, in the county aforesaid, a certain common, ill-governed, and disorderly house unlawfully^ did keep and maintain, and in the said house, for his own lucre and gain,* certain evil-dis- posed persons, as well men as women of evil name, fame, and conversation, to come together on the days and times afore- said, then unlawfully^ did cause and procure, and the said persons in the said house at unlawful times, as well in the night as in the day, on the days and times aforesaid, there to be and remain, drinking, tippling, curbing, swearing, quarrel- ling, and otherwise misbehaving themselves, then and there unlawfully and knowingly did permit and suffer ; to the great injury and common nuisance of all the citizens of said Com- monwealth, then and there being, residing, passing, and repassing, and against the peace, etc. » See Kex v. Higginaon, 2 Burrow, 1233 ; The State v. Bailey, 1 Foster, (N. H.), 343. ' This is a sufficient allegation of the time at which the offence was com- mitted. The State v. Bailey, 1 Foster, (N. H.), 343. 'Tins is sufficient, without saying "knowingly" or "corruptly." The State V. Bailey, 1 Foster, (N. H.), 343. * This allegation is unnecessary. The State v. Bsdley, 1 Foster, (N. H.) 343. 396 NUISANCE. [chap. XXXVII. 9. For carrying on cm offensive trade?- The jurors, etc., upon their oath present, "that J. S. late of, etc., on the first day of June in the year of our Lord , at the parish of B. in the county of M., near unto divers public streets being the common highways, and also near unto the dwelling-houses of divers citizens of said State, there situate and being, unlawfully and injuriously did make, erect, and set up, and did cause and procure to be made, erected, and set up, a certain furnace and boiler, for the purpose of boiling tripe and other entrails and offal of beasts : and that the said J. S., on the day and year aforesaid, and on divers othej days * and times between that day and the day of the taking of this inquisition, at the parish aforesaid, in the county afore- said, unlawfully and injuriously did boil, and cause and pro- cure to be boiled, in the said boiler, divers large quantities of tripe and other entrails and offal of beasts; by reason of which said premises, divers noisome, offensive, and unwhole- some smokes, smells, and stenches, during the time aforesaid, were from thence emitted and issued, so that the air then and there was and yet is greatly filled and impregnated with the said smokes, smells, and stenches, and was and is rendered and become and was and is corrupted, offensive, uncomfort- able, and unwholesome ; to the great damage and common nuisance of aU the citizens of said State there inhabiting, being, and residing, and going, returning, and passing through the said streets and highways ; and against the peace, etc. Second Count for contirming the nuisance. — And the jurors aforesaid, upon their oath aforesaid, do further present, that the said J. S., on the said first day of June in the year afore- said, and from that day until the day of the taking of this inquisition, at the parish aforesaid, in the county aforesaid, a certain other furnace and boiler, for the purpose of boiling tripe and other entrails and offal of beasts, before that time made, erected, and set up by certain persons to the jurors ' Archbold, Crim. PI. (London ed. 1853), 715. CHAP. XXXVn.] NUISANCE.; 397 aforesaid unknown, unlawfully and injuriously did continue and yet doth continue ; and that the said J. S., on the said first day of June in the year aforesaid, and on divers other days, etc., as in the precediriff count, from the asterisk to the end. 10. For keeping a bawdy-housed The jurors, etc., upon their oath present, that J. S. late of, and A. his wife, on the first day of June in the year of our Lord , and on divers other days and times between that day and the day of the taking of this inquisition, at the parish of B. in the county of M., unlawfully did keep and maintain a certain common, ill-governed, and disorderly house ; and in the said house, for the lucre and gain of the sedd J. S., certain persons, as well men as women, of evil name and fame, and of dishonest conversation, then and on the said other days and times, there unlawfully and willingly did cause and pro- cure to firequent and come together ; and the said men and women, in the said house of the said J. S., at unlawful times as well in the night as in the day, then and on the said other days and times, there to be and remain drinking, tippling, whoring, and misbehaving themselves, unlawfully and wil- fully did permit, and yet do permit ; to the great damage and common nuisance of all the citizens of said State there inhab- iting, being, residing, and passing ; to the evil example of all others in the like case offending, and against the peace, etc. 11. For keeping a common gaming-house? Commencement as in the last precedent, at the parish of B. in the county of M., unlawfully did keep and maintain a cer- tain common gaming-house ; and in the said common gam- ing-house, for lucre and gain, on the said first day of June in ' Archbold, Crim. PI. (London ed. 1853), 718. ' Archbold, Crim. PI. (London ed. 1853), 719. This count was held good in Rex ». Rogier, 2 Dowling & Byland, 43 ; 1 Bamewall & Cresswell, 272. 34 398 NUISANCE. [chap. XXXTII. the year aforesaid, and on the said other days and times, there unlawfully and wilfully did cause and procure divers idle and evil-disposed persons to frequent and com£, to play together at a certain unlawful game of cards called Rovge et noir; and in the said common gaming-house, on the said first day of June in the year aforesaid, and on the said other days and times, there unlawfully and wilfully did permit and suffer the said idle and evil-disposed persons to be and remain, playing and gaming at the same unlawful game called Rouge et noir, for divers large and excessive sums of money ; to the great damage and common nuisance of all the citizens of said State, to the evil example of all others in the like case offending, and against the peace, etc. Second Count. — And the jurors aforesaid, upon their oath aforesaid, do further present, that the said J. S. afterwards, to wit, on the said first day of June in the year aforesaid, and on divers other days and times between that day and the day of the taking of this inquisition, at the parish aforesaid, in the county aforesaid, unlawfully did keep and maintain a certain common gaming-room in the house of one J. N. there situate; and in the said common gaming-room, etc., etc., as in the last count, only substituting " gaming-room " for " gaming-house." CHAPTER XXXVIIl. OFFENCES AGAINST THE PUBLIC HEALTH. 1. For selling unwholesome meat. — Rev. Sts. of Mass. ch. 171, § 11. The jurors, q,tc., upon their oath present, that A. B. late of, etc., on the first day of June in the year of our Lord , at B. in the county of S., knowingly, wilfully, and maliciously did sell to one C. D., a certain quantity of diseased, corrupted, and unwholesome provisions, to wit, ten pounds of diseased, corrupted, and unwholesome beef, to be then and there used and eaten, by the said C. D., for meat, the said A. B., not then and there making fully known to the said C. D., that the said beef was then and there diseased, corrupted, and unwhole- some, and the said A. B., then and there well knowing the said beef to be diseased, corrupted, and unwholesome ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. 2. For adulterating bread for the purpose of sale. — Rev. Sts. of Mass. ch. 31, § 12. The jurors, etc., upon their oath present, that A. B. late of, etc., on the first day of June in the year of our Lord , at B., in the county of S., unlawfully and firaudnlently did adul- terate a certain substance intended for food, to wit, fifty loaves of bread, with a certain substance injurious to health, to wit, with a certain substance called alum, with the intent, and for the purpose, then and there, of selling the same; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. 400 OFFENCES AGAINST THE PUBLIC HEALTH. [CHAP. XXXVIH. 3. For selling adulterated medicine. — Mass. Sts. 1853, ch. 394, § 1. The jurors, etc., upon their oath present, that A. B. late of, etc., on the first day of June in the year of our ,Lord , at B., in the county of S., knowingly and unlawfully did sell to one C. D., a certain quantity of a fraudulently adulterated drug, to wit, one pound of opium, the said A. B. then and there well knowing, the same to be adulterated; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. 4. For selling, a diseased cow in a public market?- The jurors, etc., upon their oath present, that J. L. P. late of London, laborer, on the first day of April in the year of our Lord , at London, that is to say, at the parish of Saint Sepulchre, in the walrd of Fandngdon Without, in London aforesaid, was possessed of a certain cow, which said cow was then and there infected with a contagious, infectious,^ and dangerous disease ; and that the said J. L. P. well know- ing the premises, afterwards, and whilst the said cow of the said J. L. P. was so infected as aforesaid, on the day and year aforesaid, with force and arms at the parish and in the ward aforesaid, in London aforesaid, unlawfully, wickedly, wilfully, maliciously, and injuriously, did drive and bring, and cause and procure to be driven and brought, the said cow so in- fected as aforesaid, through and along divers public streets and ways where certain other cattle of the citizens of said Commonwealth were then passing unto and into a certain market called Smithfield Market, situate and being in the city of London aforesaid, during the period that the citizens of said Commonwealth were then and there holding the said market, which was then and there public and open to all the ' 4 Cox, C. C. Appendix, p. xiv. CHAP. XXXVin.] OITENCBS AGAINST THE PUBLIC HEALTH. 401 citizens of said Commonwealth, for the purpose of buying and selling their cattle therein, and that the said J. L. P. well knowing the premises as aforesaid, kept and continued the said cow so infected as aforesaid, in the said market during the period- of the holding the same as aforesaid, for a long space of time, to wit, for the space of twelve hours then next following; and in which said market, during the whole of the said last-mentioned period, there were and of right ought to have been divers other cows and cattle of certain citizens of said Commonwealth, then and there passing and being, by means of which said several premises, the said last-men- tioned cows and cattle so passing and being along and in the said market, became and were liable to be infected by the contagious, infectious, and dangerous disease with which the said cow of the said J. L. P. was infected as aforesaid, to the damage, etc., to the evil example, etc., and against the peace, etc. Second Count. — And the jurors aforesaid, upon their oath aforesaid,, do further presentj that heretofore, to wit, on the day and year aforesaid, at the parish and in the ward afore- said, in London aforesaid, there was, and from time imme- morial hath been, and still is, a certain public market, called Smithfield Market, where butchers and other citizens of said Commonwealth assemble and meet together for the purpose of buying cattle, to be subsequently slaughtered by them for the food of certain others of the citizens of said Common- wealth, and that afterwards, to wit, on the day and year aforesaid, at the parish and. in the ward aforesaid, in London aforesaid, the said J. L. P. was possessed of one other cow, then and there infected with a contagious, infectious, and dangerous disease ; and that the said J. L. P. well knowing the said last-mentioned premises, afterwards, and whilst the said last-mentioned cow of the said J. L. P. was so infected as aforesaid, on the day and year aforesaid, with force and arms, at the parish and in the ward aforesaid, in London aforesaid, unlawfully, wickedly, wilfully, maliciously, and in- juriously, did drive and bring, and cause and procure to be driven and brought, the said last-mentioned cow, so infected 34* 402 OFFENCES AGAINST THE PUBLIC HEALTH. [CHAP. XXXVIII. as aforesaid, unto and into the said last-mentioned market with the intention of selling and disposing of the same to the said butchers and others ; and that the same might be bought and subsequently slaughtered for the food of certain citizens of said Commonwealth, and that the said J. L. P. did then and there unlawfully, wickedly, wilfully, maliciously, and injuriously, and for his own lucre and gain expose to sale, and cause and procure to be exposed to sale, the said last- mentioned Gow so infected as aforesaid, in the said public tnarket, with the intention and for the purpose aforesaid, the said J. L. P. then and there well knowing that the said cow, so brought into the said public market and exposed to sale as aforesaid, would, if slaughtered, be unfit and unwholesome for food, and greatly prejudicial to the health of the citizens of said Commonwealth, eating and consuming the same; to the damage, etc., to the evil example, etc., and against the peace, etc. Third Count. — And the jurors aforesaid, upon their oath aforesaid, do further present, that heretofore, to wit, on the day and year aforesaid, at the parish and in the ward afore- said, in London aforesaid, there was, and from time imme- morial hath been, and still is, a certain pubKc and open mar- ket, called Smithfield Market, where butchers and other citizens of said Commonwealth have been used and accus- tomed to assemble and meet together, and where divers and very many butchers and other citizens of said Commonwealth, were then assembled and met together ; for the purpose of buying cattle, to be subsequently slaughtered by them for human food, to wit, for the food of certain others of the citi- zens of said Commonwealth, and that afterwards, to wit, on the day and year aforesaid, in the said public and open mar- ket, at the parish and in the ward aforesaid, in London afore- said, the said J. L. P. was possessed of one other cow, which was then and there infected with a loathsome, deadly, and dangerous disease, and which said last-mentioned cow, he the said J. L. P. then and there well knew would, if slaugh- tered, be unfit and unwholesome for human food, and greatly prejudicial to the health of any of the citizens of said Cora- CHAP. XXSVni.] OFFENCES AGAINST THE PUBLIC HEALTH. 403 monwealth, who might eat and consume the same ; and he the said J. L. P. well knowing the said last-mentioned premi- ses, afterwards, and whilst the said last-mentioned cow of the said J. L. P. was so infected with the said disease as afore- said, on the day and year aforesaid, with force and arms, at the parish and in the ward aforesaid, in London aforesaid, unlaw- fully, wickedly, wilfully, maliciously, and injuriously, and for his own lucre and gain, did expose to sale, and cause and procure to be exposed to sale, in the said public and open market, the said last-mentioned cow which was so then and there infected with the said disease as aforesaid, with the intention of sell- ing and disposing of the same to the said butchers and others so then and there assembled and met together as aforesaid, and that the same might be bought and subsequently slaugh- tered, for human food, to wit, for the food of certain citizens of said Commonwealth, the said J. L. P. then and there well knowing that the said last-mentioned cow, so then and there exposed to sale as aforesaid, would, if slaughtered, be unfit and unwholesome for human food, and greatly prejudicial to the health of the citizens of said Commonwealth, who rnight eat and consume the same ; to the damage, etc., to the evil example, etc., and against the peace, etc. Fourth Count. — And the jurors aforesaid, upon their oath aforesaid, do further present, that heretofore, to wit, on the day and year aforesaid, at the parish and in the ward afore- said, in London aforesaid, there was, and from time imme- morial hath been, and still is, a certain public and open mar- ket, called Smithfield Market, where butchers and other citi- zens of said Commonwealth, have been used and accustomed to assemble and meet together, and where divers and very many butchers and other citizens of said Commonwealth, were then assembled and met together for the purpose of buying cattle, to be subsequently slaughtered by them for human food, to wit, for the food of certain others of the citi- zens of said Commonwealth, and that afterwards, to wit, on the day and year aforesaid, in the said public and open mar- ket, at the parish and in the ward aforesaid, in London afore- said, the said J. L. P. was possessed of one other cow, which 404 OFFENCES AGAINST THE PTJBLIO HEALTH. [CHAP. XXXVIII. was then and there infected with a loathsome, deadly, and dangerous disease, and which said last-mentioned cow, the said J. L. P. then and there well knew would, if slaughtered, be unfit and unwholesome for human food, and greatly preju- dicial to the health of any of the citizens of said Common- wealth,^ who might eat and consume the same; and that the said J. L. P. well knowing the said last-mentioned premises, afterwards, and whilst the said last-mentioned cow of the said J, L. P. was so infected with the said disease as afore- said, on the day and year aforesaid, with force and arms, at the parish and in the ward aforesaid, in London aforesaid, unlaw- fully, wickedly, wilfully, maliciously, and injuriously, and for his own lucre and gain, did expose to sale in the said public and open market, and did then and there sell the said last-men- tioned cow, which was so then and there infected with the disease as aforesaid, to a certain butcher, to wit, one G. Gr,, in order that the same might be subsequently slaughtered for human food, to wit, for the food of certain citizens of said Commonwealth, thp said J. L. P. then and there well know- ing that the said last-mentioned cow, so then and there sold as aforesaid, would, if slaughtered, be unfit and unwholesome for human food, and greatly prejudicial to the health of the citizens of said Commonwealth, who might eat and consume the same ; to the damage, etc., to the evil example, etc., and against the peace, etc.. CHAPTER XXXIX. PERTDKY. An indictment for perjury contains the following allega- tions which are necessary to constitute the offence. 1. That the oath was taken in a judicial proceeding. 2. Before a competent jurisdiction. 3. And was material to the point in issue. 4. The oath, taken by the defendant. 5. Its wilful falsehood, that is, some one or more of the affirmative asser- tions in it are negatived by particular averments, (or as they are technically termed, assignments of perjury,) or the nega- tive assertions contradicted by the opposite affirmative. It is sufficient to allege, generally, that there was a certain cause pending, and that it came on to be tried in due form of law.i And it is unnecessary to set out any part of the indict- ment, declaration, plea, etc., on the issue to be tried at the time when the perjury is alleged to have been committed.^ It must appear that the court administering the oath had com- petent jurisdiction.^ The court must be correctly described ; * but it is not necessary to set out its authority. It is sufficient 1 Rex V. Dowlin, 5 Term K«p. 320. . ' Eex V. Aylett, 1 Term Rep. 63. ' Commonwealth v. White, 8 Pickering, 452 ; Lavey «. Regina, 7 Eng. Law and Eq. Rep. 401 ; 2 Denison, C. C. 504 ; Regina v. Hallett, 2 Denison, C. C. 237; 3 Carrington & Kirwan ; 4 Eng. Law and Eq. Rep. 570; Rex v. Hawks, 3 Carrington & Payne, 419 ; The State v. Fnrlong, 26 Maine, 69 ; The State v. Eeene, 26 Maine, 33 ; Regina v. Hughes, 1 Carrington & Kir- wan, 518. * The Slate v. Street, 1 Murphey, 156. 406 PEBJtJET. [chap. XXXIX. to say, " the said A. B. etc., then and there having competent power and authority to administer," etc.^ ^ Although it is not necessary to set out the proceedings at length, but sufficient to set forth the substance of the offence, it is necessary to show that the point falsely sworn to, was material to the question pending ; for if it were irrelevant, though false, no indictment can be founded upon it.^ K it sufficiently appear from the oath itself that it was material to the matter then before the court, that fact need not be ex- pressly averred ; ^ otherwise the materiality of that part of the oath upon which perjury is assigned, must be averred.* It seems to be sufficient to aver, that it then and there became and was a material question upon the trial of the said cause, whether, etc., without showing what issue was joined, or any other previous circumstances or evidence in the cause.^ And in stating the question which is averred to be material, it is proper to mention those circumstances which must after- wards be connected with the terms of the defendant's oath, in order to assign perjury upon that meaning.® It must be alleged that the defendant was upon oath ; and • 1 Starkie, Crim. PI. (London ed. 1828), 115. See Kex v. Alford, 1 Leacb, C. C. (4th London ed.), 150. ' Commonwealth v. Knight, 12 Massachusetts, (Rand's ed.), 373 ; Common- wealth V. Plynn, 3 Cashing, 525 ; Commonwealth v. Pollard, 12 Metealf, 229 ; The State v. Hathaway, 2 Nott & McCord, 118 ; The State v. Strat, 1 Mur- phey, 1 24 ; Rex v. Prendergast, Jebb, C. C. 64 ; Regina v. Worley, 3 Cox, C. C. 535 ; Re^na v. Owen, 6 Cox, C. C. 105 ; Regina v. Lavey, 3 Carrington & Eirwan, 26 ; Regina v. Overton, 2 Moody, C. C. 263 ; Regina v. Bennett, 4 Eng. Law and Eq. Rep. 560 ; 2 Denison, C. C. 504 ; Commonwealth v. Pick- ering, 8 Grattan, 628. In the recent case of Regina v. Phillpotts, 5 Cox, C. C. 329, 336, (1851,) Mr. Justice Erie, said, "My own opinion is, that the law ought to be that whatever is sworn deliberately, and in open court, should be the subject of peijury, but that undoubtedly- is very difiFerent from the law as it exists." ' Rex V. Souters, 2 Starkie, Rep. 423 ; 1 Starkie, Crim. PI. (London ed. 1828), 116; The State v. Mumford, 1 Devereaux, 519. • Rex V. M'Keron, 6 Term Rep. 318. ' 1 Starkie, Crim. PI. (London ed. 1828), 116. • 1 Starkie, Crim. PI. (London ed. 1828), 416 ; Kex v. Aylett, 1 Term Rep. 64. CHAP. XXXIX.] PEKJTJBY. 407 for this purpose, it is sufficient to aver, generally, that he was duly sworn to speak the truth, of and concerning, etc. But this fact cannot be taken by intendment.^ It is not necessary to set out the jurat of an affidavit ; ^ nor to state or prove that the affidavit was filed or exhibited to the court, or in any other manner used by the defendant or others.^ In setting forth the matter sworn, it is not essential to pro- fess the same particularity as is necessary in indictments for forgery and libel, which must assume to set out an exact copy; It seems sufficient to say, that the defendant, upon the trial of the said cauge, etc., did falsely, knowingly, wilfully, and corruptly say, depose, and swear, that, etc., or to the effect following, that, etc., or, where the evidence is given before a jury or magistrate ore tenus, to aver that he falsely, knowingly, maliciously, wilfully, and corruptly said, (j^posed, and swore, that, etc. Where the perjury is assigned upon an affidavit, it is usual to allege, that the defendant deposed and swore in writing as follows, that is to say, etc. ; or, falsely, know- ingly, wilfully, and corruptly said, swore, and deposed, that, etc., setting out the affidavit correctly.* It is frequently neces- sary, with a view to the subsequent assignments of perjury, to point the defendant's meaning, when it is too generally expressed, to particular facts and circumstances. This is eiFected by means of an innuendo.^ The assignment of peijury, in general, consists of express contradictions of the defendant's statements, as explained by the innuendos. ' Rex V. Stevens, 5 Eamewall & Cresswell, 246 ; Rex v. Richards, 7 Dow- ling & Rjland, 665. " Rex t;. Embden, 9 East, 437. ' Rex V. Crossley, 7 Term Rep. 315. ' 1 Starkie, Crim. PL (London ed. 1828), 117, 118. ' As to the proper office of an innuendo, see ante, p. 355. 408 PBKJTOT. [chap. XXXIX. 1. Indictment for perjury committed at the Central Criminal Court, on the trial of an indictment for wov/nding, loith intent to murder.^ The jurors, etc., upon their oath present, that at a general session of the delivery of the Queen's jail at Newgate,' holden for the jurisdiction of the said Central Criminal Court, at Justice Hall, in the Old Bailey, in the suburbs of the city of London, on Monday, the sixth day of January in the year of our Lord , before John Musgrove, Esquije, mayor of the city of London, Sir Frederick Pollpck, Knight, chief baron of our said Lady the Queen, of her Court of Exchequer, Sir John Patteson, Knight, one of the justices of our said Lady the Queen, assigne^ to hold pleas before the Queen herself, Sir Thomas Noon Talfourd, one of the justices of our said Lady' the Queen, of her Court of Common Pleas, assigned to deliver the said jail of Newgate of the prisoners therein being, one G. H. and one E. H. were, in due form of law, tried by a certain jury, upon a certain indictment then and there depending against them, for having unlawfully, mali- ciously, and feloniously assaulted and wounded one J. P., with intent to murder her, within the jurisdiction of the said Central Criminal Court. And the jurors aforesaid, upon their oath aforesaid, do further present, that at and upon the trial aforesaid, one S. D. late of the parish of — — , in the county of , single woman, did appear as a witness for and on behalf of our said Lady the Queen, and then and there before the said Central Criminal Court, to wit, at the said session of jail delivery, on the day and year aforesaid, at the parish aforesaid, was in due manner sworn, and took her corporal oath upon the Holy Gospel of God to speak the truth as such wit- ness as aforesaid, the said Central Criminal Court then and there having sufficient and competent lawful power and authority to administer the said oath to the, said S. D. in that behalf. And the jurors aforesaid, upon their oath aforesaid, ' 5 Cox, C. C. Appendix, p. xlv. CHAP. XXXIX.] PERJUEY. 409 do further present, that at and upon the said trial of the said G. H. and E. H. upon the said indictment as aforesaid, it be- came and was a material question and sijbject of inquiry whether the said S. D. at any and what time, and whether on the second day of December in the year of our Lord , and whilst the said S. D. was standing at the door of any house in Rupert Street, in the, parish of Bethnal Green, in the county of Middlesex, saw any person struggling, and where and how many such persons, and under what circum- stances, and who such persons and every of them were, and whether or not the said G. H. and E. H. and J. P., or either of them, were struggling together, and whether or not any of such persons, and which of them wore masks, and whether or not, after any struggling, any and which of such persons left or went away, and whether or not before they so left, or at any other time upon the occasion of such struggling, the said S. D. saw the said J. P. upon the ground, and whether, in fact, the sEiid J. P. was upon the ground after any such struggling, and whether, in fact, there had been any struggling between the said J. P. and the said G. H. and E. H., or either of them, and what were the particulars and circumstances attending and connected with any such struggling at the time when such struggling occurred. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said S. D., being so sworn as aforesaid, devising and wickedly intending to deceive the said Central Criminal Court in the premises, then and there before this said Central Criminal Court, at the said session of jail delivery, to wit, on the said sixth day of January in the year of our Lord , as such witness as aforesEiid, upon the trial aforesaid, and whilst it was such material question and subject of inquiry as afore- said, unlawfully, falsely, knowingly, wilfuUy, wickedly, cor- ruptly, and maliciously did say, depose, swear, and give evidence to the said Central Criminal Court, amongst other things, in substance and to the effect following, that is to say, that on the said second day of December in the year of our Lord , the said S, D., after leaving the said J. P. at work on the night of that day, went home to her own house in 35 410 PEKJURT. [chap. XXXIX. Rupert Street, (meaning Rupert Street aforesaid,) that the said S. D. stood at the door of that house, and whilst so standing there, she saw a man and two women struggling under the dead wall, under the lamp nearest to the door of the said S, D. ; that the said S. D. could not swear to the said man, but that the said E. H. was one of the said womien, and that the said S. D. observed masks about the persons of the said man and the said last-men- tioned woman; that, after some struggling, the said man and the said E. H. left, and that before they so left, the said S. D. saw the said J. P. on the ground; whereas, in truth and in fact, the said S. D. did not on the said second day of December, while standing at the door of any house in Rupert Street aforesaid, see a man and two women, or any person whatever, struggling under the said wall or elsewhere, as the said S. D. so said, deposed, swore, and gave in evidence as aforesaid ; and whereas it was not nor is it the fact, that any such man and two women, or any persons whatever, were struggling under the said wall at the said time as said, deposed, sworn to, and given in evidence by the said S. D. as aforesaid, as the said S. D. at the time she so said, deposed, swore to, and gave evidence as aforesaid, well knew ; and whereas, in truth and in fact, no such man or women as the said S. D. in that behalf said, swore to, de- posed, and gave evidence, wore any masks whatever, as the said S. D. so said, deposed to, swore, and gave evidence as aforesaid ; and whereas, in truth and in fact, the said S. D. did not see the said J. P. on the ground after any struggling whatever, nor was the said J. P. so on the ground as the said S. D. so said, deposed to, swore, and gave evidence as afore- said; and whereas, in truth and in fact, the said alleged struggling, and the said several circumstances in connection therewith, so alleged by the said S. D. as aforesaid, had no • existence whatever, but were so alleged, sworn to, and given in evidence as aforesaid, by the said S. D., for the purpose of unlawfully, wickedly, and maliciously causing the said' G. H. and the said E. H., and each of them, falsely to be convicted on the said indictment, and for no other purpose whatsoever. CHAP. XXXIX.] PEBJIJEY. 411 And so the jurors aforesaid, upon their oath aforesaid, do say, that the said S. D. then and there, before the said Central Criminal Court, to wit, at the said session of jail delivery, on the said first-mentioned day and year aforesaid, at the parish first aforesaid, in the city of London aforesaid, and within the jurisdiction of the said Central Criminal Court, as such wit- ness as aforesaid, upon the trial aforesaid, upon her oath aforesaid, the said Central Criminal Court then and there having lawful and competent power and authority to admin- ister the said oath to the said S. B. as aforesaid, by her own act and consent, and of her own most wicked and corrupt mind, in manner and form 'aforesaid, falsely, knowingly, wick- edly, wilfully, and corruptly, did commit wilful and corrupt perjury ; to the evil and pernicious example of all others in the like case offending, and against the peace, etc. 2. For perjury committed before a grand-jury^ The jurors, etc., upon their oath present, that heretofore, to wit, at the general quarter-sessions of the peace of our sovereign Lady the Queen, held at the shire hall in Shrews- bury, in and for the county of Salop, on Monday in the first week after the twenty-eighth day of December, to wit, the first day of January in the year of our Lord , before the Honorable Thomas Kenyon, Su: Baldwin Leighton, Baronet, John Arthur Lloyd, Esquire, and others their associates, her Majesty's justices, assigned to keep the peace in the county aforesaid, and also to hear and determine divers felonies, tres- passes, and other misdemeanors, in the same county done and committed, a certain biU of indictment against Thomas Hughes, late of the parish of Whitchurch, in the county of Salop, laborer, and Fanny Porter, wife of Richard Porter, laborer, late of the parish of Whitchurch, in the county aforesaid, was then and there, in due form of law, exhibited to {naming the grand-jurors) good and lawful men of the said county of Salop, then and there sworn and charged to in- ' Eegina u. Hughes, 1 Carrington & Kirwan, 519. 412 PERJTJBT. [chap. XXXIX. quire, for our said Lady the Queen, and the body of the said county ; which said bill of indictment then and there was as follows, that is to say, setting out the indictment verbatim, which was against Thomas Hughes, for stealing three table- cloths, the property of Richard Hughes, and against Fanny Porter, for receiving them, knowing them to have been stolen. And the jurors first aforesaid, upon their oath aforesaid, do further present, that, to wit, on the day and year first afore- said, to wit, at the parish of St. Chad, in the borough of Shrewsbury, in the county' of Salop, and before the said good and lawful men, who were so sworn and charged to inquire as aforesaid, had the said bill of indictment exhibited to them as aforesaid, and before the said gbod and lawful meq had inquired, as by law they ought to do, touching the matters stated and mentioned in the said bill of indictment, and touching the truth of the matters stated and contained in the said bill of indictment, Mary, the wife of Richard Hughes, late of the parish of Whitchurch, in the county of Salop, laborer, appeared before the court of general quarter-sessions of the peace, holden as aforesaid, before the said justices, and the said others, their associates, as aforesaid, as a witness in support of the said bill of indictment, and was then and there, at the said general quarter-sessions of the peace, holden as last aforesaid, before the said justices, and the said others, their associates, duly sworn, and took her corporal oath, upon the Holy Gospel of God, before the said Honorable Thomas Kenyon, Sir Baldwin Leighton, Baronet, John Arthur Lloyd, Esquire, and the said others, their associates, so being such justices as aforesaid, at the said general quarter-sessions of the peace, holden as aforesaid, that the evidence that the said Mary Hughes should give before the grand-jury, (meaning before the said good and lawful men so sworn and charged as aforesaid to inquire as aforesaid,) on the said bill of indict- ment should be the truth, the whole truth, and nothing but the truth, (the said Honorable Thomas Kenyon, Sir Baldwin Leighton, Baronet, John Arthur Lloyd, Esquire, and the said others, their associates, so being such justices as aforesaid, at the said general quarter-sessions of the peace, holden as afore- CHAP. XXXIX.] PEKJIJET. , 413 said, then and there haying sufficient and competent authority to administer the said oath to the said Mary Hughes in that behalf). And the jurors first aforesaid, upon their oath aforesaid, do further present, that afterwards, to wit, on the day and year first aforesaid, at the parish of St. Chad, in the borough of Shrewsbury, in the said county of Salop, the said good and lawful men, being so sworn and charged as aforesaid to inquire as aforesaid, did, in due form of law, and according as they were so sworn and charged as aforesaid, inquire touching the matters, and touching the truth of the matters stated and contained in the said bill of indictment so exhib- ited to them as aforesaid. And the jurors first aforesaid, upon their oath aforesaid, do further present, that, upon the said inquiry, by and before the said good and lawful men so as aforesaid sworn and charged to inquire as aforesaid, it then and there became and was a material question, whether three tablecloths^ which were then and there produced before the said good and lawful men, were the property of Richard Hughes, the husband of the said Mary Hughes ; and that, upon the said inquiry, it then and there also became and was a material question, whether the said three tablecloths were the property of the said Thomas Hughes ; and that, upon the said inquiry, it then and there became and was a material question, whether the said three tablecloths had at any time belonged to the mother of the said Mary Hughes; and that, upon the said inquiry, it then and there became and was a material question, whether the said three tablecloths had at any time been the property of the said Thomas Hughes; and that, upon the said inquiry, it then and there became and was a material question, whether the- said three tablecloths had at any time been the property of the said Richard Hughes. And the jurors first aforesaid, upon their oath aforesaid, do further present, that afterwards, to wit, on the day and year first aforesaid, at the parish of St. Chad, in the borough of Shrewsbury aforesaid, in the county of Salop, the said Mary 35* 414 PERJURY. [chap. XXXIX. Hughes, being so sworn as aforesaid, contriving and intend- ing to pervert the due course of justice, went before the said good and lawful men, so sworn and charged as aforesaid to inquire as aforesaid, and before the said good and lawful men, upon the said inquiry by and before the said good and lawful men, touching the matters, and touching the truth of the matters stated and contained in the said bill of indict- ment, and that the said Mary Hughes then and there, upon her oath aforesaid, falsely, corruptly, knowingly, wilfully, and maliciously, before the said good and lawful men so sworn and charged as aforesaid, to inquire as aforesaid, upon the said inquiry, did depose and swear, amongst other things.in substance and to the eiFect following, that is to say, that the three tablecloths which were then and there, to wit, at the time and place last aforesaid, produced, then were her son's, (meaning they were the property of the said Thomas Hughes,) and that the said tablecloths had belonged to the mother of the said Mary Hughes, and were to be divided amongst her the said Mary Hughes's children, of whom the said Thomas Hughes was one ; whereas, in truth and in fact, the said table- cloths then were not the said Mary Hughes's son's, as the said Mary Hughes then and there well knew ; and whereas, in truth and in fact, the said tablecloths were not then the property of the said Thomas Hughes, as the said Mary Hughes then and there well knew; and whereas, in truth and in fact, neither of the said tablecloths ever had been the property of the said Thomas Hughes ; and whereas, in truth and in fact, the said tablecloths then were the property of the said Richard Hughes, as the said Mary Hughes then and there well knew ; and whereas, in truth and in fact, the said tablecloths, and each of them, were, at the time last afore- said, and for twenty years and more before that time, the property of the said Richard Hughes, as the said Mary Hughes then and there well knew ; and whereas, in truth and in fact, the said tablecloths never did belong to the mother of the said Mary Hughes, as the said Mary Hughes then and there well knew ; and whereas, in truth and in fact, the said tablecloths were not to be divided amongst the children of CHAP. XXXIX.] PEEJTOY. 415 the said Mary Hughes ; and whereas, in truth and in fact, the mother of the said Mary Hughes was a married ^oman at the time of the death of the said mother, and had been so for twenty years and more before the time of her said death ; and the said Thomas Hughes and the other children of the said Mary Hughes were not born at the time of the decease of the said Mary Hughes's mother, as the said Mary Hughes then and there well knew. And so the jurors first aforesaid, upon their oath aforesaid, do say, that on the said first day of January in the year first aforesaid, at the parish of St. Chad aforesaid, in the county of Salop, before the said good and lawful men, so sworn and charged as aforesaid to inquire as aforesaid, upon their inquiry aforesaid touching the matters, and touching the truth of the matters stated and contained in the said biU of indictment, by her own act and consent, and of her own most wicked and corrupt mind, in manner and form aforesaid, fedsely, wickedly, wilfully, and corruptly did commit wilful and corrupt perjury ; to the evil example of all others in the like case offending, contrary to the form of the statute in such case made and provided, and against the peace, etc. 3. For perjury committed upon the tried of an indictment at the Central Criminal Courts The jurors, eta, upon their oath present, that at a Gen- eral Session of the delivery of the Queen's jail of Newgate, holden for the jurisdiction of the said Central Criminal Court at Justice HaJl, in the Old Bailey, in the suburbs of the city of London, on Monday the twelfth day of May in the year of our Lord , before the Eight Honorable Sir John Musgrove, Baronet, Lord Mayor of the city of London, Sir Edward Hall Alderson, Knight, one of the barons of Her Majesty's Court of Exchequer, Sir Thomas Noon Talfourd, Knight, one -of the justices of Her Majesty's Com-t of Common Pleas, Thomas Quested Finnis, Esquire, ' 5 Cox, C. C, Appendix, p. Ixviii. 416 PEKJUET. [chap. XXXIX. one of the aldermen of the said city, William Lawrence, Esquire, one of the aldermen of the said city, Russell Gur- ney, ^^quire, judge of the SheriiT's Court of the said city, and others their fellow justices, assigned to deliver the said jail of Newgate of the prisdners therein being, one W. D. was, in due form of law, tried by a certain jury upon a certain indictment, then and there depending against him for unlawfully, by false pretences, false representations, and fraudulent means, within the jurisdiction of the said Central Criminal Court, attempting and endeavoring to procure one A. H. N., a woman under the age of twenty-one years, to wit, of the age of nineteen years, to have illicit carnal connection with a certain man unknown ; and the jurors first aforesaid, upon their oath aforesaid, do further present, that at and upon the trial aforesaid the said A. H. N., late of the parish, of , in the city of London aforesaid, single woman, did appear as witness for and on behalf of our said Lady the Queen, and then and there before the said T. Q. F., Esquire, and the said R. G., Esquire, to wit, at the said Session of Jail Delivery, on the day and year aforesaid, in the city of London, and within the jurisdiction of the said court, was in due manner sworn, and did take her corporal oath upon the Holy Gospel of God, to speak the truth, the whole truth, and nothing but the truth, as such witness aforfesaid, the said T. Q. F. and the said R. G., Esquire, then and there having sufficient and competent lawful power and authority to administer the said oath to the said A. H. N. in that behalf ; and the jurors aforesaid, upon their oath aforesaid, do further present, that at and upon the said trial of the said W. D., upon the said indictment as aforesaid, it then arid there became and was a material question and sub- ject of inquiry, whether the said A. H. N. knew who wrote a certain letter then and there produced and shown to the said A. H. N. ; and whether she had at any time, but more particularly on or about the thirtieth March, in the year of our Lord , gone to the house of one J. W. for the purpose of getting the said J. W. to write a letter for the said A. H. N., and whether the said first-mentioned letter had been written at the said A. H. N,'s request by the said J. W., and whether the said A. H. CHAP. XXXIX.] PEEJTJKT. 417 N. had, in giving a reason to the said J. W. why she wanted the letter written, made a statement in substance and to the effect following, that is to say : it is only for a lark, Mrs. W., with R. R. and a lot pf us ; and whether the said A. H. N. on the thirty-first day of March, in the year of our Lord , had seen the said W. D. near a certain place called " The Ben Jonson," and whether any conversation then took place between her and the said W. D., and whether the said W. D. then told the said A. H. N. he would take her to one R. R., and whether the said W. D., together with a certain cabman, then com- pelled her to get into a certain cab, and whether the said A. H. N. then screamed and resisted the attempt to force her into the said cab, and whether the said "W. D. then got into the said cab, and whilst she was in the said cab, as she so alleged, held her hands while he put a handkerchief to her mouth, and whether she was then driven in the said cab through certain streets to a certain house, and whether she was subjected to violence and ill-treatment by any persons in the said house, and whether whilst she was in the said house she had been compelled to defend herself with a certain knife which a certain girl in the said house had given her, and whether the said A. H. N. had, whilst so defending herself, cut a certain man in the hand with the said knife, and whether she had, whilst in the said house, been compelled to drink a certain liquid which partially stupefied her, and whether she had, on the occasion in question, seen the said W. D. in the ssdd house, and whether the said W. D. then told her he would take her back to her father, and whether the said W. D. then took her in the said cab along the streets until they came to a dark street, and whether the said W. D. then got out of the cab with her and walked with her a certain distance, and whether the said W. D. then put a certain direction in her hand and told her she must find her way home the best way she could; and whether she had afterwards gone with the said J. W. to ask the friends of the said W. D. for money, and whether one E. N., the aunt of the said A. H. N., had ever charged the said A. H. N. with robbing her, and whether the said A. H, N. had ever attempted to drown herself; and 418 PERJURY. [chap. XXXIX. the jurors aforesaid, upon their oath aforesaid, do further pre- sent that the said A. H. N., being so sworn as aforesaid, but devising and wickedly intending to injure and aggrieve the said W. D. and to deceive the said court in the premises, then and there before the said T. Q,. F., Esquire, and the said R. G., Esq., then and there having such competent and lawful power and authority to administer the said oath to her as aforesaid, at the said session of jail delivery, to wit, on the said twelfth day of March in the year of our Lord , at the parish aforesaid, in the city of London aforesaid, and within the jurisdiction of the said Central Criminal Court, as such witness as aforesaid upon the triq,l aforesaid, and whilst it was such material question and subject of inquiry as aforesaid, unlawfully, falsely, knowingly, wilfully, and cor- ruptly did depose, swear, and give evidence among other things in substance and to the effect following, that is to say, that the said A. H. N. did not know who wrote the before-mentioned letter, which was then and there produced and shown to her, and that she did not on or about the thirtieth day of March, nor at any other time, go. to the house of J. W., meaning J. W. aforesaid, for the pur- pose of getting the said J. W. to write a letter for the said A. H. N., and that the said letter above mentioned had not been written at the said A. H. N.'s request by Mrs. W. (meaning thereby J. W.) aforesaid, nor had the said A. H. N. requested any person whatsoever to write the said letter ; that the said A. H. N. had not in giving a reason to the said J. W. why she wanted the said letter written, made a statement in sub- stance and to the effect following, that is to say, it is only for a lark, Mrs. W., with R. R. and a lot of us; that the said A. H. N., on the thirty-first day of March in the year of our Lord , saw the said W. D. near " The Ben Jonson" (meaning the Ben Jonson aforesaid), and that a conversation then took place between her and the said W. D., and that the said W. D. then told the said A. H. N. he would take her to R. R. (meaning R. R. aforesaid), and that the said W. D., together with a certain cabman, then compelled her to get into a certain cab, and that CHAP. XXXIX.] PERJURT. 419 she then screamed and resisted the attempt to force her into the said cab, and that the said W. D. then got into the said cab with her, and whilst she was in the said cab held her hands while he. put a handkerchief to her mouth ; that she was then driven in the said cab through certain streets to a certain house, and that she was then subjected to violence and ill-treatment by three gentlemen in the said house, who struggled with her and tried to force her up stairs, and that whilst she was in the said house she was compelled to defend herself with a knife, which some girl in the said house had given her for that purpose, and that the said A. H. N., whils so defending herself, cut one of the said gentlemen in the hand with the said knife ; that she had whilst in the said house been compelled to drink a certain liquid which partially stupefied her, and that on the occasion in question she had seen the said W. D. in the said house, and that in conse- quence of the resistance she made to the violence and ill- treatment to which she had been subjected in the said house, the said W. D. told her if she would be quiet he would take her back to her father, and that the said W. D. then took her in the said cab along the streets until they came to a dark street, and that the said W. D. then got out of the cab with her and walked with her a certain distanccj and the said W. D. then put a certain direction in her hand and told her she must find her way home the best way she could; that she had never gone with the said J. W. to ask the friends of the said "W. D. for money ; and that her aunt (meaning the said E. N.) had never charged the said A. H. N. with robbing her, and that the said A. H. N. had never at- tempted to drown herself. Whereas, in truth and in fact the said A. H. N., at the time she so deposed and swore as afore- said, well knew who wrote the above-mentioned letter ; and whereas in truth and in fact she did go on or about the thirtieth day of March in the year aforesaid, to the house of the said J. W. for the purpose of getting the said J. W. to write the said letter for the said A. H. N. ; and whereas in truth and in fact the said letter so shown to her on the said trial as afore- said, was written at the said A. H. N.'s request by the said J. 420 PERJDKT. [chap. XXXIX. W. ; and whereas in truth and in fact the said A. H. N., in giving a reason to the said J. W. why she wanted the said letter written, made a statement in substance and to the effect following, that is to say, it was only for a lark, Mrs. W., with R. R. and a lot of us ; and whereas in truth and in fact the said A. H. N. did not on the thirty-first day of March in the year of our Lord , see the said W. D. near " The Ben Jonson" aforesaid, nor at any other place, and that no conversation then took place between them, nor did the said W. D. then teU her he would take her to the said R. R., nor did the said W. D., either alone or with any other person, compel her to go into any cab, nor did she then scream and resist the attempt to force her into the said cab, nor did the said W. D. then get into the said cab with her, nor did he whilst she was in such cab or else- where hold her hands while he put a handkerchief to her mouth; and whereas in truth and in fact the said A. H. N. was not driven to any house where she was subjected to, nor was she compelled to defeiid herself from any violence or ill-treatment whatsoever ; and whereas in truth and in fact, the said W. D. did not tell the said A. H, N. that if she would be quiet he would take her back to her father ; nor did " he take her in any cab along the street until they came to a dark street, nor did he get out of any cab with her and walk with her, nor did he put any direction in her hand, nor tell her she must find her way home in the best way she could ; and whereas in truth and in fact the said A. H. N. did on or about the thirtieth day of March in the year of our Lord , go with the said J. W. to ask the friends of the said ,W. D. for money ; and whereas in truth and in fact her aunt the said E. N. had frequently charged the said A. H. N. with robbing her ; and whereas in truth and in fact the said A. H. N. did, to wit, on or about the day of in the year of our Lord , attempt to drown herself; and whereas in truth and in fact the said "W. D., on the day the said A. H. N., swore she met with him as aforesaid, never saw or spoke to nor was in company with the said A. H. N., nor was he near the place called " The Ben Jonson " afore- CHAP. XXXIX.] PBRJUKY. 421 said. And whereas in truth and in fact the said alleged trans- actions relating to the taking of the said A. H. N. to a house in the manner above mentioned, and all the circumstances relating thereto so alleged, sworn to, and given in evidence by the said A. H. N., had no existence whatever, as the said A. H. N. then and there well knew, but were so alleged, sworn to, and given in evidence as aforesaid by the said A. H. N., for the purpose of unlawfully, wickedly, and mali- ciously causing the said W. D. falsely to be convicted on the said indictment, and for no other purpose w:hatsoever. And so the jurors aforesaid, upon their oath aforesaid, do say that the said A. H. N. then and there, before the said T. Q,. F., Esquire, and the said R, G., Esquire, they then and there hav- ing such power and authority as aforesaid, to wit, at the said session of jail delivei^, on the said twelfth day of May in the year of our Cord , at the parish aforesaid, in the city of London aforesaid, and within the jurisdiction of the said court, as such witness as aforesaid, upon the trial aforesaid of her own proper act and consent, and of her own most wicked and corrupt mind, in manner and form aforesaid falsely, knowingly, wickedly, wilfully, and corruptly did commit wilful and corrupt perjury ; to the evil and per- nicious example of all others in the like c^se offending, and against the peace, etc. 4. For perjury committed in an examination before a commis- missioner of bankrupts.^ The jurors, etc., upon their oath present, that on the twenty- fourth day of October in the year of our Lord , a petition for adjudication of the bankruptcy of one J. S. D. was under and in pursuance of the statute made and passed in the ses- sion of Parliament holden in the twelfth and thirteenth years of the reign of our Lady the Queen, intituled " An Act to amend and consolidate the Laws relating to Bankrupts," filed and prosecuted in the Court of Bankruptcy in London ; and that the said J. S. D. afterwards, to wit, on the day afore- * 5 Cox, C. C, Appendix, p. Ixxii. 36 422 PERJURY. [chap. XXXIX. said, in the year aforesaid, duly became and was declared and adjudicated to be a bankrupt under and within the meaning of the said statute. And the jurors aforesaid, upon their oath aforesaid, do further present, that afterwards, and whilst the proceedings upon and in respect of the said bank- ruptcy were depending in the said Court of Bankruptcy, to wit, on the seventeenth day of November in the year of our Lord , J. H. came before E. H., Esquire, at the Bank- ruptcy court house, in Basinghall street, in the city of Lon- don, and within the jurisdiction aforesaid, to be examined in the said Court of Bankruptcy in the matter of the said bank- ruptcy, by and before the said E.'H., touching and concerning the trade, dealings, and estate of the said bankrupt, the said E. H. then being a commissioner of the said Court of Bank- ruptcy, duly appointed and empower^ to act in the matter of the said bankruptcy, and to examine the said J. H. in that behalf; and that the said J. H. then and there, before the said E. H., was duly sworn, and took his corpbral oath, that the evidence he should give in and upon his said examination should be the truth, the whole truth, and nothing but the truth : the said E. H. then and there having competent power and authority to administer the said oath to the said J. H. in that behalf. And the jurors aforesaid, upon their oath afore- said, do further present, that at and upon the said examina- tion of the said J. H., and at the time the said J. H. so deposed and swore as hereinafter mentioned, it then and there became and was material in and to the matter of the said bankruptcy, to inquire what was the nature and extent of the dealings of the said J. H. with, and of his purchases from the said bankrupt, and especially of the extent and of the manner of dealing with respect to such purchases, during the months of September and October in the year of our Lord , and whether the said J. H. had, previous to the second day of September in the year aforesaid, made any purchases of goods from the said bankrupt to the extent of ten pounds at one time ; and whether certain purchases, for and in respect of which certain invoices, marked respectively B, C, D, E, F, G, H, I, K, L, and M, and produced by the said J. H. at and upon CHAP. XXXIX.] PEKJURY. 423 his said examination, were all the purchases over five pounds which the said J. H. had made from the said bankrupt in September in the year aforesaid; and whether certain in- voices, produced by the said J. H. at and upon his said exam- ination, and marked respectively N, O, P, and Q,, were all the invoices which the said J. H. had received from the said bankrupt in the month of October in the year aforesaid ; and whether the purchases made by the said J. H. from the said bankrupt, in the said month of October, and for which the said J. H. did not take invoices, exceeded fifteen pounds ; and whether the said J. H. had ever gone with the said bankrupt to the house of a pawnbroker in Sloarie street, named C. L., to redeem goods ; and whether the said J. H. had ever redeemed any deposits made by the said bankrupt to the said C. L., a pawnbroker in Sloarie street ; and whether the said J. H. had ever sold any goods which had been received or purchased by. the said bankrupt, to one B. P. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said J. H., being so sworn as aforesaid, did then and there, upon his said examination, upon his oath aforesaid, falsely, corruptly, knowingly, wilfully, and maliciously, before the said E. H., depose and swear, amongst other things, in substance and to the effect following, that is to say, my dealings (mean- ing his the said J. H.'s dealings) with D. (meaning the said bankrupt) commenced in May last, but they were not then to any extent, and I (meaning the said J. H.) always took a bill of parcels when I purchased to the extent of five pounds or ten pounds. I keep all my bills of parcels ; and all the bills of parcels I have had from D. (meaning the said bankrupt), I (meaning the said J. H.) have now with me here, but I had no bills of parcels from D. (meaning the said bankrupt), till the second of September last (meaning the month of September in the year aforesaid), as all my previous transactions with him (meaning the said bankrupt) were of a very trifling character, before the second of September last (meaning the month of September in the year aforesaid), I (meaning the said J. H.) had no one transaction with D. (meaning the said bank- rupt) to the extent of ten pounds, but I may have had to the 424 PEBJUEY. [chap. XXXIX. extent of about five pounds from the second day of September last. I have had invoices of all my (meaning the said J. H.) purchases and dealings with D. (meaning the said bankrupt). I (meaning the said J. H.) do not remember going with the bankrupt (meaning the said bankrupt) to a pawnbroker's in Sloane Street, named L., to redeem goods ; and I say posi- tively that I never did go there with the bankrupt (meaning the said bankrupt). I (meaning the said J. H.) bought of him (meaning the said bankrupt) in the month of September (meaning September in the year aforesaid), goods to the value of several hundred pounds. I produce all the invoices of my (meaning the said J. H.) purchases of him (meaning the said bankrupt) in September (meaning September afore- said) ; they are marked respectively B, G, D, E, F, G, H, I, K, L, and M ; those are all the purchases over five pounds which I purchased of D. (meaning the said bankrupt) in Sep- tember. My purchases of him under five pounds, but of which I took no invoices, were few in number during that month. My last purchase of D. for which I took an invoice, was on the eighth day of October in the year of our Lord , and since that time I have made very trifling purchases of D. I (meariing the said J. H.) produce all my invoices of D. (meaning the said bankrupt) in the month of October, (meaning the month of October in the year aforesaid,) which are marked respectively N, O, P, and Q. My dealings with D. in this month of October, for which I took invoices, amounted together to about one hundred and fifteen pounds ; any other purchases of him (meaning the said bankrupt) in the month of October, (meaning October in the year aforesaid,) for which I did not take invoices, amounted to not more than fifteen pounds. I (meaning the said J. H.) never did on any occasion redeem any deposits made by D. (meaning the said bankrupt) to Mr. L., a pawnbroker in Sloane Street, (meaning the said C. L.,) and that I speak positively to. I (meaning the said J. H.) never sold any of D.'s goods (meaning any goods which the said Ji H. had received or purchased from the said bankrupt) to B. P. of Castle Street, Saint Mary Axe (meaning the said B. P.) ; CHAP. XXXIX.] PBKJURY. 425 whereas, in truth and in fact, the said J. H. had, previous to the said second day of September in the year aforesaid, had divers transactions with the said bankrupt, each of which transactions had been and was to a much greater extent than the sum of ten pounds. And whereas, in truth and in fact, the said J. H. had, previous to the said second day of Sep- tember last aforesaid, made divers purchases of goods of and from the said bankrupt, each of which said purchases had been and was to a much greater amount and extent than ten pounds at one time ; and whereas, in truth and in fact, the said purchases for and in respect of which the said invoices marked respectively B, C, D, E, F, G, H, I, K, L, and M, were purchased by the said J. H. at and upon his said exam- ination, were not all the purchases above the amount of five pounds which the said J. H. had made and purchased from the said bankrupt in the month of September in the year aforesaid; and whereas, in truth and in fact, the said J. H. had, in the said month of September, made divers purchases of goods, to a greater amount than five pounds ; each pur- chase, from the said bankrupt, to wit, a certain purchase of five dozen silver spoons and forks, for a sum exceeding five pounds, to wit, twenty pounds ; and a certain other purchase of two gold watches, for a sum exceeding five pounds, to wit, fifteen pounds, the said last-mentioned purchases being other and different from any of the said purchases in September aforesaid, the invoices for and in respect of which were so produced by the said J. H. aforesaid ; and whereas, in truth and in fact, the purchases made by the said J. H. from the said bankrupt in the month of October, in the year aforesaid, and for which the said J. H. did not take invoices, greatly exceeded the sum of fifteen pounds, and amoujited to a much larger sum, to wit, to the sum of one hundred pounds ; and whereas, in truth and in fact, the said J. H. did, to wit, on the eighth day of October in the year aforesaid, go to the shop of the said C. L., in Sloane street aforesaid, to redeem goods, and did then and there redeem of and from the said C. L. certain deposits made by ihe said bankrupt to and with the said C. L., as the said J. H. at the time he so deposed and 36* 426 PEKJOTY. [chap. XXXIX. swore as aforesaid then well knew; and whereas, in truth and in fact, the said J. H. had sold divers goods, to wit, five dozen silver spoons and forks, and four gold watches, which the said J. H. had received from the said bankrupt, to the said B. P., as the said J. H. at the time he so deposed and swore as aforesaid, then and there well knew ; against the peace, etc. Second Count. — And the jurors aforesaid, upon their oath aforesaid, do further present, that on the twenty-fourth day of October in the year of our Lord, , a petition for the adjudication of the said bankruptcy of the said J. S. D. was, under and in pursuance of the said statute, filed and prosecuted in the Court of Bankruptcy in Lon- don, and that the said J. S. D. afterwards, to wit, on the day last aforesaid, in the year last aforesaid, duly became and was declared and adjudicated to be a bankrupt, under and ,within the meaning of the ^id statute. And the jurors aforesaid upon their oa:th aforesaid do further present, that afterwards and whilst the said proceedings upon and in respect of the said last-mentioned bankruptcy were depending in the said Court of Bankruptcy, to wit, on th« first day of December in the year of our Lord, , the said J. H. came before the said E. H., Esq., at the Bankruptcy Court House in Basinghall-street, in the city aforesaid, and within the jurisdiction aforesaid, to be examined in the said Court of Bankruptcy, in the matter of the said bankruptcy, by and before the said E. H., touching and concerning the trade, dealings, and estate of the said bankrupt, he the said E. H. then being a Commissioner of the said Court of Bankruptcy, duly appointed and empowered to act in the matter of the said bankruptcy, and to examine the said J. H. in that behalf ; and that the said J. H. then and there before the said E. H., was duly sworn that the evidence which the said J. H. should give in and upon his said examination, should be the truth, the whole truth, and nothing but the truth, the said B. H. then and there having a competent power and author- ity to administer the said oath to the said J. H. in that behalf. And the jurors aforesaid, upon their Oath aforesaid, do further present, that in and upon the said last-mentioned CHAP. XXXIX.] . PEEJtrRY. 427 examination of the said J. H., and at the time the said J. H. so deposed and swore as hereinafter mentioned, it then and there became and was material in and to the matter of the said bankruptcy, to inquire whether the said J. H. had ever been to the shop of a pawnbroker named C. L., in Sloane street, or to any pawnbroker's in Sloane street, to redeem goods pledged to the said C. L. by the said bankrupt ; and whether the said J. H. had on the twenty-first and twenty-third days of October in the year aforesaid, respectively redeemed at the shop of one J. R. goods pledged by the said bankrupt with the said J. R. ; and whether^he pawnbroker's tickets for and in respect of certain goods which had been redeemed by the said J. H. at the shop of the said J. R., on the twenty-first and twenty-third days of October in the year aforesaid respectively had been received by the said J. H. from the said bankrupt. And the jurors aforesaid, upon theii- oath afore- said, do further present, that the said J. H., being so sworn as last aforesaid, did then and there, upon his said last-men- tioned examination, upon his oath last aforesaid, falsely, cor- ruptly, knowingly, wilfully, and maliciously depose, and swear, amongst other things, in substance and to the effect following, that is to say, I (meaning the said J. H.) did not, on or about the eighth day of October last (meaning October, in the year aforesaid) accompany the bankrupt (meaning the said bank- rupt) to or meet the bankrupt at L.'s, in Sloane street (mean- ing the said C. L.'s), and redeem two lots of goods pledged by the bankrupt at L.'s ; one lot for ten pounds, and the other lot for eighty pounds, I (meaning the said J. H.) never redeemed any lots at L.'s (meaning the said C. L.). I recol- lect on one occasion meeting the bankrupt (meaning the said bankrupt) near the Exhibition, in the evening, and he then asked me to accompany him somewhere in that neighbor- hood, and I did so, but it was not, to my knowledge, to a pawnbroker's ; the bankrupt went in at a private entrance, and the bankrupt beckoned me in and I saw the bankrupt produce some letter or 'ticket, and I saw some goods handed out. I helped the bankrupt to count out his money. I then left the room, and the bankrupt, on coming out, told me he had a 428 PBEJUEY. . [chap. XXXIX. fine lot of goods, which he proposed to sell me. I (meaning the said J. H.) cannot say whether that was at Mr. L.'s (meaning the said C. L.'s) house. Upon that occasion I did not produce the money, and I did not myself redeem the goods. I (meaning the said J. H.) have redeemed some goods at M. R.'s in Shoreditch (meaning the shop of the said J. R.), but I cannot say the date or the amount, nor whose tickets they were, nor if I received the tickets from the bankrupt (meaning the said bankrupt). I cannot say if I redeemed any goods whatever at R.'s since the seven- teenth of October last. I Redeemed on two occasions at R.'s, goods belonging to the bankrupt, but those I redeemed some time in the summer with money supplied me by the bankrupt for the purpose, and on those occasions I deliv- ered the goods to the bankrupt. I (meaning the said J. H.) did not, to my recollection, on the twenty-first' October last (meaning October in the*srear aforesaid)- redeem goods pledged for fifty pounds, at R.'s, in Shoreditch, (meaning the shop of the said J. R.). The bankrupt did not give me money to redeem the goods at R.'s, which it is supposed I redeemed on the twenty-first and twenty-third October last, but I do not recollect that I (meaning the said J.' H.) did redeem any such goods about that time at R.'s. I take out a great quantity of goods, which are pledged by other persons, all over London, and I cannot recollect one transaction of that kind from another. I did not, to my knowledge, retain out of the duplicates or deposit notes which I' received' from the bankrupt, on the seventeenth October, two relating to goods deposited at R.'s for two sums of fifty pounds each, nor do I recollect having retained any other of the tickets which I had o'f D. (meaning the said bankrupt) on the seventeenth October last, besides those I have mentioned in my former examination. The tickets which I did retain of the bankrupt on the seventeenth October last, and which I have since redeemed, were as follows : — One at S.'s for twenty-five pounds, ten shillings; one at Mr. R. A.'s for 'twenty-seven pounds ; and one other at Mr. R. A.'s for eighty pounds. I also retained one other deposit note at Mr. A.'s for one hun- CHAP. XXXIX.] PEBJUBT. 429 dred pounds, ten shillings, which I, at the time of my last examination, handed to Mr. V. S. for the assignees. I do not recollect retaining the duplicates which I had from the bankrupt on the seventeenth October last, any other than the four mentioned notes. I (meaning the said J. H.) never had of D. (meaning the said bankrupt) any other pawnbroker's tickets than those I have already stated ; therefore if I (mean- ing the said J. H.) did redeem any goods at R.'s (meaning the shop of the said J. R.) on the twenty-first October last (meaning October in the year aforesaid), and on the twenty- third October last, I (meaning the said J. H.) had not the tickets from the bankrupt (meaning the said bankrupt). Whereas in truth and in fact the said J. H. did, on the eighth day of October, in the year aforesaid, accompany the said bankrupt to the shop of the said C. L., in Sloane street, and then redeemed two lots of goods pledged by the said bank- rupt at the said C. L.'s, one lot for ten pounds, and the other lot for eighty pounds, as the said J. H., at the time he so deposed as last aforesaid, then well knew. And whereas in truth and in fact the said J. H. did produce the money with which tlje said two lots of goods pledged by the said bank- rupt at the said C. L.'s, in Sloane street aforesaid, were redeemed. And whereas in truth and in fact the said J. H. did, on the twenty-first day of October in the year aforesaid, redeem at the shop of the said J. R. goods pledged by the said bankrupt with the said J. R. for fifty pounds, as the said J. H., at the time he so deposed as in this count mentioned, then well knew. And whereas in truth and in fact," the said J. H. had received the pawnbroker's ticket for and in respect of the said last-mentioned goods from the said bankrupt, as the said J. ,H., at the time he so deposed as aforesaid, well knew. And whereas in truth and in fact the said J. H. had, on the twenty-third day of October in the year aforesaid, redeemed at the shop of the said J. R. the goods pledged by the said bankrupt with the said J. R. for fifty pounds, as the said J. H., at the time he so deposed as last aforesaid, well knew. And whereas in truth and in fact the said J. H. had received the pawnbroker's ticket for and in respect of the said 430 PERJURY. [chap. XXXIX. last-mentioned goods from the said bankrupt, as the said J. H., at the time he so deposed as last aforesaid, well knew ; against the peace, etc. 5. For perjury against a witness who, on a former trial, had sworn that a note was given to the plaintiff for the purpose of being discotmted merely, and not in payment of a debt?- The jurors, etc., upon their oath present, that heretofore, to wit, on the fourteenth day of January in the year of our Lord , certain issues theretofore joined in a certain cause then lately depending in the court of our said Lady the Queen, before the Barons of her Majesty's Exchequer, at "Westminster, in which cause one A. H. was the plaintiff, and M. B. was defendant, to wit, at the sitting of nisiprius holden in Hilary term, for the county of Middlesex, to wit, on the fourteenth day of January in the year aforesaid, at West- minster aforesaid, in the great haU of pleas there, commonly called Westminster Hall, and within the jurisdiction of the said Central Criminal Court, according to the form of the statute in such cases made and provided, before Sir Robert Mounsey Rolfe, Knight, then and there being one of the Barons of her Majesty's said Court of Exchequer, at West- minster, came on to be tried in due form of law, and were then and there tried by a jury of the said county of Middle- sex in that behalf duly taken and sworn between the parties aforesaid. And the jurors aforesaid, upon their oath afore- said, do further present, that upon ttie trial of the said issues so joined between the parties aforesaid, one T. P., late of the parish of Saint Margaret, within the liberty of Westminster, in the said county of Middlesex, and within the jurisdiction aforesaid, laborer, did then and there, to wit, on the day and year aforesaid, at the parish of Saint Margaret, within the liberty and county and jurisdiction aforesaid, appear and was produced as a witness for and on behalf of the said M. B., the defendant in the said cause, and that the said T. P. was then and there duly sworn, and did then and there take his cor- * 1 Cox, C. C. Appendix, p. vii. CHAP. XXXIX.J PERJURY. 431 poral oath, upon the Holy Gospel of God, before the said Sir Robert Mounsey Rolfe, Knight, then and there being such baron as aforesaid, that the evidence which the said T. P. should give to the said court there, and to the said jury so sworn, between the parties as aforesaid, touching the mafters then in question on the said issues, should be the truth, the whole truth, and nothing but the truth, the said Sir Robert Mounsey Rolfe, Knight, then and there having sufficient and competent power and authority to administer the said oath to the said T. P. in that behalf. And the jurors aforesaid, upon their oath aforesaid, do further present, that, at and before the several times in this count mentioned, the said M. B., the defendant in the said cause had made his certain promissory note in writing, bearing date a certain day and year therein mentioned, to wit, the first day of March in the year of our Lord , and thereby promised to pay to the order of the said T. P. forty-nine pounds, etc., ten shillings, three months after date thereof, and the said M. B. delivered the said note to the said T. P. ; and the said T. P., afterwards, to wit, on the first day of May in the year last aforesaid, indorsed the said promissory note to. the said A. H., for«a valuable consideration, to wit, for fifty pounds, money then due and owing from the said T. P. to the said A. H., for pro- fessional business theretofore done, performed, and transacted by the said A. H. for the said T. P. And the jurors afore- said, upon their oath aforesaid, do further present, that the said M. B. pleaded among other pleas to the said action so pending against him at the suit of the said A. H. and herein- before mentioned and referred to, that the said promissory note, to recover the amount whereof the said action was brought, was made by him, and that he delivered the same to the said T. P. for the joint accommodation of the said M. B. and the said T. P., and that there never was any value or consideration for the making the said note or for the delivery of the same to the said T. P. or for the said T. P., being the holder thereof or for the payment by the said M. B. of the amount thereof, or of any part thereof, of all which the said A. H. before and at the time of the indorsement of the said note 432 PEKJUBT. [chap, sxxix. to him, had notice ; and that the said T. P. indorsed the said note to the said A. H., in consideration of a promise made by the said A. H. to the said T. P., that the said A. H. then would discount the said promissory note, and advance money th^eon, and upon no other consideration ; and that the said A. H. never did discount the said promissory note, or advance any money thereon, but, on the contrary thereof, wholly neglected and refused so to do, and there never was any value or consideration for the indorsement of the said note by the said T. P. to the said A. H., and the said A. H. always held, and still holds, the said note, without value or considera- tion, and in violation of his said promise, and contrary to the terms and purpose for which the same was so indorsed to him as aforesaid ; and the said A. H., for replication to the said plea so pleaded as last aforesaid, said that the said M. B., of his own wrong, and without the cause by him in the said plea alleged, broke his promise in the said first count of the declaration mentioned, and to which the said plea was pleaded, and this the said A. H. prayed might be inquired of by the country ; and the said M. B. did the like, which was one of the issues which so then and there came on to be tried, and was then and there tried as aforesaid. And the jurors aforesaid, upon their oath aforesaid, do further present, that at and upon the said trial of the said issues so joined as aforesaid' between the parties aforesaid, it then and there became and was a material question, whether the said A. H. ever did promise the said T. P. to discount the said promis- sory note ; and whether the said A. H. ever did promise the said T. P. to advance money upon the said promissory note ; and also whether the said T. P. indorsed and delivered the said promissory note to the said A. H. on the first day of March in the year of our Lord , or thereabouts ; and also at what time and when the said T. P. did in fact indorse' and deliver the said promissory note to the said A. H. ; and whether the said promissory note was not, in point of fact, indorsed and delivered by the said T. P. to the said A. H. some time in the early part of the month of May in the year of our Lord ; and whether the said T. P. ever said that CHAP. XXXIX.] PERJURY. 433 the said M. B. ought to pay the amount mentioned in the said note to the said A. H., and the said A. H. ought to make him ; and whether the said T. P. said that the said T. P. in- dorsed the said promissory note to the said A. H., on account of business done by the said A. H. for the said T. P. And the jurors aforesaid^ upon their oath aforesaid, do further pre- sent, that thereupon, at and upon such trial as aforesaid, the said T. P. being so produced and sworn as aforesaid, devising and wickedly intending to cause and procure a verdict to pass against the said A. H., and for the said M. B., on the trial of the said issues, did then and there, to wit, on the said four- teenth day of January, at the parish aforesaid^ in the liberty and county aforesaid, and within the jurisdiction of the said Central Criminal Court aforesaid, before the said Sir Robert Mounsey Rolfe, Knight, then and there being such Baron as aforesaid, falsely, maliciously, wilfully, wickedly, and cor- ruptly, and by his own proper act and consent, upon his oath so taken as aforesaid, then and there say, depose, swear, and give evidence, amongst other things, to the said court, and to the jurors of the said jury so sworn, between the said parties as aforesaid, in substance and to the eifect as follows, that is to say r That the said T. P., went to the said A. "H. on the first day of March in the year of our Lord , or thereabouts. That the said A. H. promised the said T. P. that if the said T. P. would get a bill from the said M. B., and bring it in the morning,; the said A. H. would discount it. That the said T. P. took the said note (meaning the promissory note aforesaid) to the said A. H. That the said A. H. promised the said T. P. that the said A. H. would discount the said promissory note (meaning that at the time the said T. P. took the said promissory note to the said A. H., the said A. H. promised the said T. P. that the said A. H. would dis- count the said promissory note). That the said A. H. told the said T. P. that if the said T. P. would call in the morning, the said A. H. would give the said T. P. the cash (meaning the cash for and in respect of discounting the note). That the said T. P. took the said promissory note to the said A. H. on the first day of March in the year 37 434 PERJURY. [chap. XXXIX. of our Lord , or thereabouts, or within a day or two. That the said T. P. never said that the said M. B. ought to pay the said promissory note (meaning that he never said that the said M. B. ought to pay to the said A. H. the amount mentioned in the said note). That the said T. P. never said that the said A. H. ought to make him (meaning that the said T. P. never said that the said A. H. ought to make the said M. B. pay to the said A. H. the amount mentioned in the said note). That the said T. P. never said that the said T. P. gave the bill to the said A. H. on account of business done (meaning that the said T. P. never said that the said T. P. indorsed the said promisissory note to the said A. H. on account of business done by the said A. H. for the said T. P.). And whereas, in truth and in fact, the said A. H. did not promise the said T. P. that if the said T. P. would get a bill from the said M. B. and bring it in the morning, the said A. H. would discount it. And whereas, in truth and in fact, the said A. H. did not at the time the said T. P. took the said promissory note to the said A. H., or at any time promise the said T. P. that the said A. H. would discount the said promissory note aforesaid; and whereas, in truth and in fact, the sg.id A. H. did not tell the said T. P. that if the said T. P. would call in the morning, the said A. H., would- give the said T. P. the cash for and in respect of discounting the said promissory note ; and whereas, in truth and in fact, the said T. P. did not indorse the said promissory note to the said A. H. on the first day of March in the year of our Lord , or thereabouts, or within a day or two ; and whereas', in truth and in fact, the said T. P. indorsed the said promissory note to the said A. H. some time in the early part of the month of May in the year of our Lord : and whereas, in truth and in fact, the said T. P. did say, and had then said, that the said M. B. ought to pay the amount mentioned in the said note to the said A. H., and that the said A. H. ought to make him : and whereas, in truth and in fact, the said T. P. did say, and had then said, that the said M. B. ought to pay to the said A. H. the amount mentioned in the said note ; CHAP. XXXIX.] PEEJXmY. 435 and that the said A. H. ought to make the said M. B. pay to the said A. H. the amount mentioned in the said note ; and whereas, in truth and fact, the said T. P. did say, and had then said, that the said T. P. gave the bill to the said A. H. on account of business done ; and whereas, in truth and in fact, the said T. P. did say, and had then said, that he, the said T. P., indorsed the said promissory note to the said A. H. on account of business done by the said A. H. for the said T. P. And so the jurors first aforesaid, upon their oath afore- said, do say that the said T. P., at and upon the said trial of the said issues, on the said day and year first aforesaid, at the parish aforesaid, within the liberty aforesaid, in the county aforesaid, and within the jurisdiction of the said Central Criminal Court, before the said Sir Robert Mounsey Rolfe, Knight, Baron as aforesaid, so as aforesaid having sufficient power and authority to administer the said oath to the said T. P. in that behalf, by his own proper act and consent, and of his own most wicked and corrupt mind, in manner and form aforesaid, did falsely, wickedly, wilfully, and corruptly, upon his oath aforesaid, commit wilful and corrupt perjury ; to the evil example of all others in the like case offending, and against the peace, etc. 6. For perjury before a grand-jury?- The jurors, etc., upon their oath present, that heretofore, to wit, at the Court of Common Pleas, begun and holden at Cambridge, within -and for the county of Middlesex, on the second Monday of February in the year of our Lord , by Charles H. Warren, Esquire, then one of the justices of said court, before the grand-jurors of said Commonwealth for the county of Middlesex aforesaid, which said grand-jurors were then and there at said court duly and legally convened, ' This count is taken from the indictment in the case of Commonwealth v. Parker, Mass. C. C. Pleas, Middlesex, June T. 1849. It is valuable as a pre- cedent that has been subjected to a severe examination hj eminent counsel. See Commonwealth v. Parker, 2 Cushing, 212. 436 PEKJUBT. [chap. XXXIX. having then and there been duly and legally impanelled and sworn according to the provisions of law in that behalf, a cer- tain complaint was then and there made and presented against one George F. Farley, for the crime of perjury, and that in the investigation and hearing of said complaint before said grand-jurors so impanelled and sworn as aforesaid, Samuel Parker, late of Chelmsford in the county of Middlesex, Esquire, did then and there personally appear as a witness in behalf of said complaint ; and that the said Samuel Parker being then and there before said grand-jurors as such witness as aforesaid was then and there duly and legally sworn be- fore said grand-jurors in their presence, and in the presence of the district attorney then in attendance, by Rufus Fisk, foreman of said grand-jurors, the said Fisk, such* foreman as aforesaid, being then and there duly and legally authorized and empowered to administer said oath, and that the said Samuel Parker did then and there take his corporal oath before said grand-jurors, that the evidence the said Samuel Parker should give them in all matters and things which should come before them should be the truth, the whole truth, and nothing but the truth ; and that then and there it became and was material in the investigation of said complaint by and before said grand-jurors impanelled as aforesaid, whether before that time there was any agreement made by said Samuel Parker with said George F. Farley to pay or allow said Farley any bonus or extra interest, that is to say, any sum over and above the legal rate of interest, according to the laws of the said Commonwealth, for any money before that time loaned by said Farley to one Lemuel Parker, or to said Samuel Parker, or for any sum or sums of money before that time due and owing firom said Samuel Parker to said Farley ; and that thereupon the said Samuel Parker, being so sworn and produced as a witness as aforesaid, to wit, on the seventeenth day of February in the year of our Lord , at Cambridge aforesaid, in the county aforesaid, and being then and there lawfully required to depose the truth in relation to said complaint, and in a proceeding in a course of justice, wick- edly devising and intending to subvert the truth, and wrong- CHAP. XXXIS.] , PBEJURY. 437 fully devising and intending to cause the said George F. Farley to be indicted and presented for the prime of perjury, then and there at and upon the hearing and investigation of said com- plaint, by and before the said grand-jurors impanelled as aforesaid, and then and there in session at said term of the Court of Common Pleas aforesaid, did, as such witness as aforesaid, on his oath aforesaid, falsely, wickedly, maliciously, wilfully, and corruptly, and by his own proper act and con- sent depose, swear, and give evidence to and before the said grand-jurors so impanelled as aforesaid, and as such grand- jurors so hearing the matter upon the complaint aforesaid, amongst other things, in substance and effect following, that is to say, I (meaning said Samuel Parker) never agreed to pay Mr. Farley (meaning said George F. Farley) any extra interest whatever, (meaning interest over and above the legal rate of interest,) I (meaning said Samuel Parker) never agreed to pay Mr. Farley (meaning said Farley) any extra interest (meaning interest over and above the legal rate of interest) for any money before that time loaned by Mr. Farley (meaning said Farley) to Lemuel Parker (meaning said Lemuel Parker) or to myself, (meaning said Samuel Parker,) or for any sum or suras of money due and owing from myself (meaning said Samuel Parker) to Mr. Farley, (meaning said Farley,) I (meaning said Samuel Parker) never agreed to pay Mr. Farley (meaning said Farley) any bonus (meaning any sum above the legal rate of interest) for or* on account of any loan or loans of money to me (meaning said Samuel Parker) by Mr. Farley, (meaning said Fariey,) or on account of any delay of payment of moneys due from me (meaning said Samuel Parker) to Mr. Farley (meaning said Farley), I (meaning said Samuel Parker) never agreed to pay Mr. Farley (meaning said Farley) any bonus or extra interest whatever (meaning any sum or interest over and above the legal rate of interest) ; whereas, in truth and in fact, said Samuel Parker did agree before that time to pay said Farley extra interest, that is to say, interest over and above the legal rate of interest, said Samuel Parker had agreed to pay said Farley extra interest, that is to say, interest over 37* 438 PEKJUKT. • [chap. XXXIX. and above the legal rate of interest, for certain moneys before that time loaned by said Farley to said Lemuel Parker, to wit, on a certain note, for the sum of one thousand dollars, given by said Lemuel Parker as principal, and said Samuel Parker and others as sureties on a certain note, for the sum of six hundred dollars, given by said Samuel Parker to said Farley, and for certain other sums of money due and owing from Samuel Parker to said Farley ; said Samuel Parker had agreed to pay said Farley a certain bonus, that is to say, a certain sum of money above the legal rate of interest for and on account of certain loans of money by said Farley to said Samuel Parker, and for and on account of delay of payment of moneys due from said Parker to said Farley; and said Samuel Parker had agreed to pay to said Farley a bonus, that is to say, a sum above the legal rate of interest ; and had agreed to pay said Farley extra interest, that is to say, interest above the legal rate of interest. *And so the jurors aforesaid, upon their oath aforesaid, do say, that the said Samuel Parker, in manner and form last aforesaid, and of his own most corrupt mind, did falsely, wilfully, wickedly, and corruptly, commit wilful and corrupt peirjury ; * ^ to the mani- fest perversion of public justice, against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. ' The allegation between the asterisks, " And so the jurors aforejsaid," etc. is surplusage, and may be rejected. Kyalls u. Regina, 11 Queen's Bench, Kep. 781 ; 3 Cox, C. C. 36 ; Rice v. The Common-wealth, 12 Metcalf, 246, 248. CHAPTER XL. POLYGAMY.^ 1. Indictment for polygamy. — Rev. Sts. of Mass. ch. 130, § 2. The jurors, etc., upon their oath present, that C. D. late of B. in the county of S., gentleman, on the first day of June in the year of our Lord , at B. aforesaid, in the county afore- said,2 was lawfully married to one J. N.,^ and the said J. N. then and there had for his wife ; and that the said C. D., afterwards, to wit, on the first day of July in the year of our Lord , with force and arms,* at B. aforesaid, in the county aforesaid, feloniously and unlawfully did marry and take to wife one A. B., and to the said A. B. was then and there married, the said C. D. being then and there a married man and the law- ful husband of the said J. N., and the said J. N., his former wife, being then ^ alive,^ and the said C. D. never having been * This offence consists in having a plurality of wives at the same time. It is often termed, bigamy ; which, in its proper signification, only means having had two wives in succession. 3 Greenleaf on Ev. § 203. * It is sufficient to allege a prior marriage, without stating the place where the first marriage took place. The State v. Bray, 13 Iredell, 289. ' The description of the person, though unnecessarily stated, must be strictly proved as alleged. Thus, where the person was described as a •' widow," but it appeared in evidence that she was in fact and by reputation a single woman, the variance was held fatal. Kex v. Deeley, 1 Moody, C. C. 303 ; 4 Carrington & Payne, 579. • Not necessary. The State v. Kean, 10 New Hampshire, 347. " It is sufficient to allege that the wife was then living, without laying any venue. 1 Starkie, Crim. PI. (London ed. 1828), 67. • An allegation that the defendant married again, " the said J. N., his for- mer wife, being then alive," sufficiently charges the offence, without any further averment that he was still married to J. N. when the offence was committed. Murray v. Regina, 7 Queen's Bench Kep. 700. 440 POLYGAMY, [chap. XL. legally divorced from the bonds of matrimony from the said J. N., and, here proceed to negative the excepted cases in the following section;^ whereby and by force of the statute in such case made and provided, the said C. D. is deemed to have committed the crime of polygamy. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said C. D., in manner and form aforesaid, on the first day of July in the year of our Lord , at B. aforesaid, in the county aforesaid, did commit the crime of polygamy; against the peace, etc., and contrary to the form of the statute in such case made and provided. 2. For polygamy, by continuing to cohabit with a second wife in this State. — Rev. Sts. of Mass. ch. 130, § 2? The jurors, etc., upon their oath present, that C. D. late of, etc., on the first day of June in the year of our Lord , at B. in the county of S., was lawfully married to one A. B., and the said A. B. then and there had and took for his law- ful wife, and that afterwards, to wit, on the first day of July in the year of our Lord , at B. in the county of S., the said C. D. feloniously and unlawfully did marry and take to wife one E. F., the said C. D. then and there being married and the lawful husband of the said A. B., the said A. B. then being his former wife and living ; and the said C. D. never having been legally divorced from the said A. B. ; and that the said C. D. afterwards did cohabit and continue to co- habit with the said B. F., as his second wife in this State, to wit, at B. in the county of S., and Commonwealth afore- said, for a long space of time, to wit, for the space of six months ; ^ and, here proceed to negative the excepted cases in the following section. Whereby, and by force of the statute in such case made and provided, the said C. D., ^ See The State v. Palmer, 18 Vennont, 570. ' See Commonwealth v. Hunt, 4 Gushing, 49 ; Ante, p.'352, note 2. ' This is a sufficient statement of the time when the offence was com- mitted. Commonwealth v. Bradley, 2 Cushing, 553. CHAP. XL.] POLYGAMY. 441 is deemed guilty of the crime of polygamy. And so the jurors aforesaid, on their oath aforesaid, do say, that the said C. D. in manner and form aforesaid, at, etc., on, etc., did commit the crime of polygamy; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. CHAPTER XLI. ' RAPE. An indictment for this offence in the first place usually charges, that the prisoner did " violently and feloniously as- sault " the party aggrieved ; but it is not necessary that there should be an express allegation of an assault.* The main averment is, that he did " against her will, feloniously ravish and carnally know her ; " the averment of the act being done " against her will " is material and necessary for the purpose of negativing her consent to it.^ The word " ravish " is a technical one, which is indispensable for the purpose of denot- ing the particular offence, and the force which is used in committing it. The words " carnally know " are also an ap- propriate description of the crime; although it has been doubted whether they are essential, the word "ravish" being considered to be of the same import, and therefore to supply them.^ * Kegina v. Allen, 2 Moody, C. C. 179 ; 9 Camngton & Pay^e, 520. And see Kex v. Pelfryman, 2 Leach, C. C. (4th London ed.), 563. See ante, p. 253. ' 1 Gabbett, Crim. Law, 833 ; 2 Deacon, Crim. Law, 1085 ; 1 Starkie, Crim. PI. (London ed. 1828), 77 ; The State v. Jim, 2 Devereaux, 142. Contra, Harman v. The State, 12 Sergeant & Rawle, 69. And see Begina v. Allen, 2 Moody, C. C. 179, 180. ' 1 Gabbett, Crim. Law, 833 ; 2 Deacon, Crim. Law, 1085 ; 1 Hale, P. C. 628 r 1 Starkie, Crim. PI. (London ed. 1828), 77; 2 Hawkins, P. C. ch. 23, § 79. In England, it has been held, that the omission of the " carnaliter cognovit," vitiates the indictment on demurrer, but not, as it seems, after verdict Rex v. Warren, 1 Kussell, Crim. Law. 686. CHAP. XLI.] RAPE. 443 1. Indictment for rape?- The jurors, etc., upon their oath present, that C. D. late of B. in the county of S., laborer, on the first day of June in the year of our Lord , with force and arms, at B. aforesaid, in the county aforesaid, in and upon one A. B., violently and " feloniously did make an assault, and her the said A. B., then and there, violently and against her will, feloniously did ravish and carnally know ; ^ against the peace of said Com- monwealth, and contrary to the form of the statute in such case made and provided. 2. Another precedent for the same. — Mass. St. 1852, ch. 259, § 2.3 The jurors, etc., upon their oath present, that C. D. late of B. in the county of S., laborer, on the first day of June in the year of our Lord , with force and arms, at B., in the county of S., in and upon one E. F., a female of the age of ' Archbold, Crim. PI. (London ed. 1853), 562. An indictment is good, ■which charges that A. committed a rape, and that B. was present, aiding and abetting him in the commission of the felony. For the party aiding may be charged either, as he was in law, a principal in the first degree, or, as ha was in fact, a principal in the second degree. Eegina v. Crisham, Cramp- ton & Marshman, 187. In Maryland, a count charging a rape, may be joined with another count charging an assault with intent to commit a rape. The State v. Sutton, 4 Gill, 494 ; Burk v. The State, 2 Harris & Johnson, 426. So in Pennsylvania. Harman v. The Commonwealth, 12 Sergeant & Eawle, 69. See Wash v. The State, 14 Smedes & Marshall, 120. ' This indictment charges with sufficient certainty that A. B. is a female. The State v. Farmer, 4 Iredell, 224 ; The State v. Terry, 4 Devereaux & Battle, 152. ' Under the Bev. Sts. ch. 137, § 11, a party indicted for a rape, alleged to have been committed upon his own daughtpr, may be convicted of incest, if the jury find the criminal connection, but that it was not by force and against the will of the daughter. Commonwealth v. Goodhue, 2 Metcalf, 674. , 444 BAPB. [chap. xli. ten years and more, to wit, of the age of twenty years,^ vio- lently and feloniously did make an assault ; and her, the said E. F., then and there, by force and against her wiU, violently and feloniously did ravish and carnally know ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. 3. For carnally knowing and abusing a woman child vmder the age of ten years. — Mass. St. 1852, ch. 259, § 2. The jurors, etc., upon their oath present, that C. D. late of B. in the county of S., laborer, on the first day of June in the year of our Lord , with force and arms, at B. afore- said, in the county aforesaid, in and upon one E. F., a woman child,^ under the age of ten years, to wit, of the age of nine, years, feloniously did make an assaidt, and her, the said E. F., then and there feloniously did Unlawfully and carnally know and abuse; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. ' In North Carolina, it is not necessary to allege that the female is of the age of ten years. The State v. Farmer, 4 Iredell, 224. ' An indictment on a statute for carnally knowing and abusing a female child, which charges that the rape was committed " in and upon one M. C, ah infant under the age of ten years," etc., and her, the said ^. C, feloni- ously did unlawfully and carnally know and abuse, etc., is sufficient, without describing the infant as " a female child." The State i: Terry, 4 Devereaux & Battle, 152. See Commonwealth v. Bennett, 2 Virginia Cases, 235. CHAPTEE XLII, EECEIVmS STOLEN GOODS. It is necessary that the goods received shall appear to be the very goods stolen, or part thereof. A. and B. were indicted, A. for stealing six bank-notes of £100 each, and B. for receiving " the said notes." A. stole the notes, changed them into notes of £20 each, some of which he gave to B. ; and it was held, that B. could not be convicted, for he did not receive the notes that were stolen.^ Therefore, if the goods stolen have been altered between the time of the larceny and that of the receipt, so as to pass under a new denomination, the indictment should correspond with the fact.^ Yet, where the indictment charged the principal with stealing one live sheep, the goods, etc., of J. L., and the accessory with receiv- ing " twenty pounds of mutton, part of the goods, etc., so as aforesaid feloniously stolen, etc.," the conviction was held to be proper ; though the thing received passed under a different denomination from that which was stolen.^ As the guilty knowledge is the gist of this offence, it is obviously essential that the averment of it should be correctly made. And, therefore, where in an indictment against a receiver who was tried with the principal, the averment was, " knowing the same to have stolen," omitting the word " been," the judges thought the indictment bad.* And where ' Rex V. Walkley, 4 Carrington & Payne, 132. ' Arcfcbold, Crim. PL (London ed. 1853), 354. ' Rex V. Cowell, 2 East, P. C. 617, 781. * Rex V. Kernon, 2 Russell, Crim. Law, 259. 38 446 RECEIVING STOLEN GOODS. [OHAP. XLII. an indictment charged the defendant, by the name of " Fran- cis Morris," with receiving stolen goods, " the said Thomas Morris well knowing," etc; it was holden that the words, " the said Thomas Morris," might be rejected as surplusage ; for the allegation of knowledge would then be perfectly con- sistent with the preceding matter.^ In a very recent case, a count alleged that the prisoner received the goods of A. B., " he, the said A. B. then knowing them to have been stolen." Upon motion i^ arrest of judgment, the count was held to be fataUy defective for the want of a scienter? Although the common form of the indictment is to state the fact of stealing the goods by the principal, and the receipt of -them by the receiver, " he then and there well knowing the said goods and chattels to have been feloniously stolen," etc., yet, where the indictment was for knowingly receiving goods stolen by persons unknown, it was objected to as insufficient, in not ascertaining the principal thief. But the indictment was held to be good ; for the great view of the statute is to reach the receivers, where the principal thieves cannot easily be discovered.* Where, however, the name of the principal is known, it is proper to state it according to the truth.* It is necessary to observe this distinction in the form of the indictment for this offence. Where the principal and receiver are indicted jointly, the receiver is charged with receiving the goods and chattels " so as aforesaid feloniously stolen," etc.,^ * Rex V. Moms, 1 Leacb, C. C. (4th London ed.), 109. See also Begina V. Crespin, 11 Queen's Bench Hep. 913 ; ante, p. 39. " Regina v. Larkin, 6 Cox, C. C. 377 ; 26 Eng. Law and Eq. Rep. 572, (1854). ' Rex V. Thomas, 2 East, P. C. 781. An averment that the goods were stolen by " a certain person to the jurors unknown," will be supported by- proof that the- name of the person could not be ascertained by any reasonable diligence. Regina v. Campbell, 1 Carrington & Kirwan, 82. * See Rex v. Walker, 8 Campbell, 264 ; Rex v. Elsworthy, 1 Lewin, C. C. 117 ; Rex v. Bush, Russell & Ryan, C. C. 872. ' In a very recent case, in England, the indictment«in the first count, charged the prisoner with larceny, on which the jury found a verdict of not guilty ; in a subsequent count, the prisoner was charged with having received CHAP. XLII.] RECEIVING STOLEN GOODS. 447 but in a substantive fAony the allegation is, "goods and chat- tels before then feloniously stolen did receive," without stat- ing by whom the felony was committed.^ With respect to the form of the indictment, it is further to be observed, that in the case of Rex v. Galloway, which was tried at the Old Bailey, and referred by the recorder to the judges, it was decided by them, unanimously, that it was ho objection, in point of law, that an indictment charges pris- oners, in one count, as principals in stealing the goods, and in another as receivers ; but the judges were equally divided on thp question, whether the prosecutor should not have been put to his election ; and, thereupon, they all agreed that directions should be given to the respective clerks, not, in future, to put both charges in the same indictment.^ In this country it has the article "so as aforesaid feloniously stolen," on -which the jury found a verdict of guilty. It was held, that' there was no repugnancy, for that, although the word " aforesaid " in a subsequent count virtuaUy incorporates all the necessary averments as to time and place in that count, the words " so as aforesaid feloniously stolen," did not necessarily mean that the article had been stolen by the person named in the first count, but only that it had before then been feloniously stolen by some person. Begina v. Craddock, 2 Denison, C. C. 31 ; 1 Temple & Mew, C. C. 361 ; 1 Eng. Law and Eq. Kep. 563, (1850). In Kex ?;. Woolford, 1 Moody & Kobinson, 384, it was ruled, that if it be alleged in the indictment that the principal felony was committed by A. B., it must be proved that A> B. committed the felony, otherwise the receiver must be acquitted. . ^ Kex V. Jervis, 6 Carrington & Payne, 156 ; The State v. Murphy, 6 Alar bama, 845 ; Swaggerty v. The State, 9-Yerger, 338. An indictment charg- ing that a certain evil-disposed person feloniously stole certain goods, and that C. D. and E. F. feloniously received the said goods, knowing them to be stolen, was holden good against the receivers, as for a substantive felony. Kegina v. Caspar, 2 Moody, C. C. 101 ; 9 Carrington & Payne, 289. = 1 Moody, C. C. 234, (1829); Kes v. Madden, 1 Moody, C. C. 277 ; 1 Lewin, C. C. 83, (1830). Now, however, in England, it is expressly provided by St. 1 1 & 1 2 Vict. ch. 46, § 3, that in every indictment for feloniously steeil- ing property, it shall be lawful to add a count for feloniously receiving the same property, knowing it to be stolen, and in any indictment for feloniously receiving property, knowing it to be stolen, it shall be lawful to add a count for feloniously stealing the same property ; and the prosecutor of such indict- ment is not to be put to any election, but the jury may find a verdict of 448 KBOEIVING STOLEN' aOODS. [CHAP. XLII. been held, that counts for stealing and receiving stolen goods may be joined in the same indictment, and the court will neither quash the indictment, nor compel the prosecutor to elect upon which count he will proceed.^ A receiver inay be indicted as an accessory in one count, and for a sub- stantive felony in another count ; and although, in his discre- tion, the judge may put the prosecutor to his election, he will not do so whenever it is clear that there is only one oiFence, and the joinder of counts cannot prejudice the defendant.^ In an indictment against a married woman for receiving stolen goods, it is unnecessary to aver, that at the time, she was not acting under the coercion of her husband.^ 1. Indictment against a receiver of stolen goods, as for a sub- stantive felony. The jurors, etc., upon their oath present, that C. D. late of B. in the county of S., laborer, on the first day of June in , the year of our Lord , with force and arms, at B. afore- said, in the county aforesaid, one gold watch, of the value of one hundred dollars, of the goods and chattels of one J. N., before then feloniously stolen, taken, and carried away, feloni- ously did receive and have, the said C. D. then and there well knowing the said goods and chattels to have been feloni- ously stolen, taken, and carried away ; against the peace, etc., and contrary to the form of the statute in such case made and provided. guilty on either count, against all or any of the persons charged. Under this statute it has been held, that where the indictment contains several counts for larceny, describing the goods stolen as the property of different persons, it may contain the like num^ber of counts, with the same variations, for receiving the same goods. Kegina v. Beeton, 2 Carrington & Kirwan, 960 ; 1 Denison, C. C. 414 ; 1 Templet Mew, C. C. 87. ' Hampton v. The State, 8 Humphreys; 69. ' Kegina v. Pulham, 9 Carrington & Payne, 281 ; Kex v. Austin, 7 Car- rington & Payne, 796 ; Rex v. Hartall, 7 Carrington & Payne, 475 ; Kex v. Wheeler, 7 Carrington & Payne, 170. ' The State v. Nelson, 29 Maine, 329. CHAP. XLII.] EBCEIVING STOLEN GOODS. 449 2. Against a receiver of stolen goods. — Rev. Sts. of Mass, ch. 126, § 20.1 The jurors, etc., upon their oath priesent, that C. D. late of, etc., laborer, on the first day of June in the year of our • Lord , with force and arms, at B. aforesaid, in the county aforesaid,^ one silver tankard, of the value of fifty dollars, ' The Kev. Sts. of Mass. ch. 126, § 20, enact, that "Every person who shall buy, receive, or aid in the concealment of any stolen money, goods, or property, knowing the same to have been stolen, shall be punished," etc. This section describes only one offence, which may be committed either by buying, receiving, or aiding in the concealment of stolen goods ; and an in- dictment charging a defendant with buying, receiving, and aiding in the concealment of such goods, charges only one offence. Stevens v. The Com- monwealth, 6 Metcalf, 241. Contra, The State v. Murphy, 6 Alabama, 845. Where an indictment charges a defendant with receiving various articles of stolen property, knowing them to be stolen, and specifically describes each article, and avers the value thereof, and he pleads that he is " guilty of receiving fifty dollars' worth of said property, in manner and form as set forth in the indictment," no valid judgment can be rendered against him on such plea. O'Connell v. The Commonwealth, 7 Metcalf, 460. ' In Kex V. Stott, as reported in 2 East, P. C. 751, 753, 780, it was held, that an indictment against a receiver of stolen goods need not allege time and place to the fact of stealing the goods ; it is sufficient if they be alleged to the fact of the receipt. But in a recent case, Lord Denman, C. J., said, " An objection was also taken to the fourth count, on the score of the venue, a material fact being alleged without place. Stott's case, reported in 2 East's Pleas of the Crown, was thought to bear directly on this doctrine, and was not successfully distinguished in fhe argument. But the Master of the Crown Office has found the- paper book in that case, on which Ashhurst, J., took his note of the argument, conducted by Lord Abinger on the one side, and the late Mr. Justice Vaughan on the other, in Michaelmas Term, 1798. The indorsement of that learned judge intimates that the case stood for fur- ther argument. The prisoner was convicted in April, and then sentenced to twelve months' imprisonment, more than half of which expired before the argument; and there is every reason to suppose that Sir E. H. East is mis- taken in reporting that case as decided. Indeed he himself intimates, that if there was error in the sentence, it might possibly have been amended by being changed into transportation for fourteen years, and that the prisoner's counsel was aware of the danger that might attend the success of his argu- ment. O'Connell v. Kegina, 7 Queen's Bench Rep. 17, 35, (1843). 38* 450 KECEIVING STOLEN GOODS. [CHAP. XLH. enumerate the articles, and the value of each, of the goods and chattels of one E. F., then and there in the possession of the said E. F. being found, feloniously did steal, take, and carry away; against the peace of said Commonwealth, and con- trary to the form of the statute in such case made and pro- •vided. And the jurors aforesaid, upon their oath aforesaid, do further present, that G. H. late of, etc., laborer, afterwards, to wit, on the first day of July in the year of our Lord , with force and arms, at B. aforesaid, in the county aforesaid, the goods and chattels aforesaid, so as aforesaid feloniously stolen, taken, and carried away, feloniously did receive and have, and did then and there aid in the concealment of the same, the said G. H. then and there well knowing the said goods and chattels to have been feloniously stolen, taken, and carried away; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. 3. Against a receiver of embezzled property. — Mass. St. 1853, ch. 184. The JTirors, etc., upon their oath present, that C. D. late of F. in the county of M., trader, on the first day of June in the year of our Lord , at F. aforesaid, in the county aforesaid, being then and there employed as clerk of one J. N., the said C. D. not being then and there an apprentice to the said J. N., nor a person under the age of sixteen years, did, by virtue of his said employment, then and there, and whilst he was so employed as aforesaid, take into his posses- sion certain money, to a large amount, to wit, to the amount of fifty dollars, of the moneys of the said J. N,, his employer, and the said money then and there feloniously did embezzle and fraudulently convert to his own use, without the consent of the said J. N. ; whereby, and by force 6f the statute in such case made and provided, the said C. D. is deemed to have committed the crime of simple larceny. And so the jurors aforesaid, upon their oath aforesaid, do further present, that the said C. D. then and there, in manner and form aforesaid, CHAP. XLII.] RECEIVING ^TOJ-EN GOODS. 451 the said money, the property of the said J. N., his said em- ployer, from the said J. N. feloniously did steal, take, and carry away ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. And the jurors aforesaid, upon their oath aforesaid, do further present, that G. H. late of F. in the county aforesaid, laborer, afterwards, to Axdt, on the first day of July in the year of our Lord — ! — , at F. aforesaid, in the county aforesaid, the money aforesaid, so as aforesaid feloniously embezzled, feloni- ously did receive and have, and did then and there aid in con- cealing the same, the said G. H. then and there well knowing the said money to have been embezzled as aforesaid ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. . CHAPTER XLIII. EBSCTJB. 1. Indictmerit for the rescue of a felon from a constable?- The jurors, etc., upon their oath present, that on the first day of June in the year of our Lord , at B. in the county of M., J. S., then being one of the constables of said B., brought one J. N. before A. C, Esquire, then and yet being one of the justices of the peace within and for the county aforesaid, legally authori2ed and duly qualified to per- form and discharge the duties of said office ; and the said J. N. was then and there charged before the said A. C. by one Catherine Hope, spinster, upon the oath of the said Catherine, that the said J. N. had then lately before, violently, and against her will, feloniously ravished and carnally known the said Catherine ; and the said J. N. was then and there exam- ined before the said A. C, the justice aforesaid, touching the said offence so to him charged as aforesaid ; upon which the said A. C, the justice aforesaid^ did then and there make a certain warrant under his hand and seal, in due form of law, bearing date the first day of June in the year aforesaid, directed to the keeper of Newgate or his deputy, command- ing the said keeper or his deputy, that he should receive into his custody the said J. N., brought before him and charged upon the oath of the said Catherine Hope, with the premises above specified ; and the said Justice, by the said warrant, did command the said keeper of Newgate, or his deputy, to safely keep the said J. N. there until he by due course of law » Archbold, Crim. PI. (Am. ed. 1846), 652, 663. CHAP. XLIII.J RESCUE. 453 should be discharged ; which said waiTant afterwards, to wit, on the day and year aforesaid, at B. aforesaid, in the county aforesaid, was delivered to the said J. S., then being one of the constables of said B. as. aforesaid, and then and there having the said J. N. in his custody for the cause aforesaid ; and the said J. S. was then and there commanded by the said A. C, the justice aforesaid, to convey the said J. N. without delay, to the said jail of Newgate, and to deliver the said J. N. to the keeper of the said jail, or his deputy, together with the warrant aforesaid. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said J. N. late of B. aforesaid, in the county aforesaid, laborer, and J. T. late of the same place, laborer, afterwards, and while the said J. N. was in the custody of the said J. S., under the said warrant as aforesaid, and while the said J. S. was conveying the said J. N. under and by virtue of the warrant, to the said jail of Newgate, to wit, on the day and year aforesaid, with force and arms, at B. aforesaid, in the county aforesaid, in and upon the said J. S., then and there being a constable as afore- said, and then and there lawfully having the said J. N. in his custody, by virtue of the said warrant, for the cause aforesaid, in the due execution of his said office then and there being, did make an assault, and the said J. S. then and there did beat, wound, and ill-treat ; and that the said J. T., the said J. N. out of the custody of the said J. S. and against the will of the said J. S., then and there 'unlawfully and forcibly did rescue and put at large, to go whithersoever he would ; and that the said J. N., himself out of the custody of the said J. S. and against the will of the said J. S., then and there unlaw- fully and'forcibly did rescue and put at large, to go whither- soever he would ; against the peace,' etc., and contrary to the form of the statute, etc. 454 RESCUE. [CHAf. XLIH. 2. Another precedent for the same?- The jurors, etc., upon their oath present, that before the committing of the offence hereinafter mentioned, to wit, on the third day of January in the year of our Lord , at B. in the county of S., and within the jurisdiction of the said court, one John Witty was apprehended and taken into cus- tody by John Squire, then and there being a peace-officer, to wit, a constable of the metropolitan^olice force, on a charge then and there made to the said John Squire by one Maria Baker, that the said John Witty had then and there feloni- ously stolen, taken, and carried away twelve silver teaspoons of the value of two dollars, each of the goods and chattels of Henry Baker, and which said John Wi,tty afterwards, to wit, at the Court of Common Pleas, begun and holden at B. within the county of M., on the fourth Monday of June in the year of our Lord , before J. P., Esquire, one of the Justices of said Court, was in due form of law convicted of and for the said felony so charged against him as aforesaid. And the jurors aforesaid, upon their oath aforesaid, do further present, that on the day and year first aforesaid, and whilst the said John Witty was in the lawful custody of the said John Squire as aforesaid, upon the said charge of felony as aforesaid, John Muires, late of B., in the^ county of S. afore- said, laborer, Patrick Scully, late of the same place, laborer, and James CaUaghan, late of the same place, laborer, well knowing the premises aforesaid, with force and arms, at B. aforesaid, in the county of Surrey aforesaid, and within the jurisdiction of the said Court, in and upon the said John Squire then and there being such constable as aforesaid, and then and there lawfully having the said John Witty in his custody, upon the said charge of felony as aforesaid, feloni- ously did make an assault, and that the said John Muires, Patrick Scully, Dennis Sullivan, and James CaUaghan, the said John Witty out of the custody of the said John Squire, ' 2 Cox, C. C. Appendix, p. xliii. CHAP. XLin.] RESCUE. 455 and against the will of the said John Squire, then and there feloniously, unlawfully, and forcibly did rescue, and aid and assist in rescuing ; against the form of the statute in such case made and provided, and against the peace of, etc. Second Count. — Similar to the first, but charging that the said John Witty was apprehended by, and rescued by pris- oners from the custody of Benjamin Pain, John Squire, and Thomas Richards, then and there being peace-officers, to wit, constables of the metropolitan police force, the cause of apprehension and the conviction being alleged as in the first count. CHAPTER XLIV. JIIOT. 1. For riot and assault?- The jurors, etc., upon their oath present, that A. B., late of B. in the county of S,, laborer, C. D. late of the same place, carpenter, E. F., late of the same place, shoemaker, together with divers other evil disposed persons, to the number of twelve and more, to the jurors aforesaid unknown, on the fifth day of November in the year of our Lord , with force and arms,* ^ at B. aforesaid, in the county aforesaid, unlaw- fully, riotously, and routously did assemble and gather together, to the disturbance of the public peace,f and being so then and there assembled and gathered together, in and and upon one S., the wife of J. T., then and there unlawfully, riotously, and routously did make an assault, and the said S. then and there unlawfully, riotously, and routously did beat, wound, and ill-treat, so that her life was greatly despaired of, and other wrongs to the said S. then and there unlawfully, riotously, and routously did ; to the evil example of all others in the like case offending, and against the peace, etc. 2. For riot and tumult? The jurors, as in the last precedent, to the asterisk, then thus : to wit, with sticks, staves, and other offensive weapons, ^ Matthews, Crim. Law, 527. ' It is not necessary to repeat the words " with force and arms." Common- wealth V. Runnels, 10 Massachusetts, (Rand's cd.), 518. ' 3 Matthews, Crim. Law, 527. CHAP. XLIV.] EIOT. 457 at B. aforesaid, in the county aforesaid, unlawfully, riotously, and routously did assemble and gather together, to the dis- turbance of the public peace, and being so assembled and gathered together, armed as last aforesaid, did then and there unlawfully, riotously, ajid routously make a gi-eat noise, riot, and disturbance, and did then and there remain and continue armed as last aforesaid, making such noise, riot, and disturb- ance, for the space of an hour and more then next following, to the great disturbance and terror ^ not only of the citizens of said Commonwealth, then and there being and residing, but of all other the citizens of said Commonwealth, then passing and repassing in and along the common highway there : in contempt, etc., and against the peace, etc. 3. For remaining one hour after proclamation made? The jurors, as in precedent number one to the dagger, and thus : t and the said A. B., C. D., E. F., and the said other persons to the jurors aforesaid unknown, being so unlawfully, riotously, and tumultuously assembled together to the disturbance of the public peace, as aforesaid, after- wards and whilst they were so assembled as aforesaid, to wit^ on the day and year aforesaid, at B. aforesaid, in the county aforesaid, one R. P., Esquire, then being one of the justices of the peace, within and for the county of S., legally author- ized and duly qualified to discharge and perform the duties of that ofiice, as near to them the said A. B., C. D., E. F., and the said other persons to the jurors aforesaid unknown, so unlawfully, riotously, and tumultuously assembled, to the number of twelve and more, as aforesaid, as the said R. P. could then and there safely come, did then and there com- mand and cause to be commanded silence to be, while procla- mation was making ; and that the said R. P. after that, did then and there, as near to them the said A. B., C. D., E. F., ' If an unlawful act is charged, this averment is unnecessary. . Common- wealth V. Runnels, 10 Massachusetts, (Rand's ed.), 518. * Matthews' Crim. Law, 528. 39 458 EioT. [chap. xliv. and the said other persons so assembled, to the number of twelve and more, as aforesaid, as the said R. P. could then and there safely come, openly and with a loud voice did make and cause to be made proclamation, according to the form of the statute in such case made and provided, in these words following, that is to say, etc. ^ And the jurors aforesaid, upon their oath aforesaid, do further present, that the said A. B., C. D., E. F., and the said other persons to the number of twelve and more, to the jurors aforesaid unknown, being so required and commanded by the said R. P., the justice aforesaid, to disperse themselves, and peaceably to depart to their habita- tions, or to their lawful business, did then and there, to the number of twelve and more, with force and arms, notwith- standing the said proclamation so made as aforesaid, feloni- ously, unlawfully, riotously, and tumultuously remain and continue together by and for the space of one hour after such command so made by the said proclamation as aforesaid : to the evil example of aU others in the like case offending, against the peace, etc. ^ The proclamation must be set out correctly. Kex v. Woolcock, 5 Car- rington & Payne, 616. CHAPTER XLV. KOBBEKY. RoBBERT, by the common law, is larceny from the person, accompanied by violence, or by putting in fear ; and an in- dictment therefor must allege that the taking was from the person, and that it was by violence or by putting in fear, in addition to the averments that are necessary in indictments for other larcenies.^ It is necessary that the taking should be charged to be with violence from the person, and against the will of the party ; ^ but it is not necessary that the indictment should also charge that he was put in fear.^ But no technical description of violence is necessary.* It is obvious that the general principle, that the name of the party injured, if known, must be set forth in the indict- ment, with accuracy, is equally applicable to the crime of robbery.^ The indictment must also allege that the articles ' Commonwealth v. Clifford, 8 Gushing, 215; Rex v. Rogan, Jebb, C. C. 62 ; Rex v. Donally, 1 Leach, C. C. (4th London ed.), 193; 2 East, P. C. 719. ' Kit V. The State, 11 Humphreys, 167. * ' Commonwealth v. Humphries, 7 Massachusetts, (Rand's ed.), 242 Com- monwealth V. Clifford, 8 Cushing, 215, 217. * Rex V. Smith, 2 East, P. C. 783. ' But in Rex v. Turner, 1 Leach, C. C. (4th London ed.), 536, where the defendant was indicted for a robbery, on the person of Elizabeth Hudson, and it appeared that the prosecutor was unmarried at the time the robbery was committed, and that her name was Elizabeth Hudson, but that after the robbery, and at the time the bill was presented to and found by the grand- jury, she was married to a person of the name of Heywood, it was held, that the description of the maiden name was sufficient. 460 KOBBERY. [chap. XLV. stolen, were the property of the person robbed, or of some third person, and that they were carried away by the de- fendant.^ Many nice cases have been determined as to what should be considered a robbery in or near the highway, and as to the manner of alleging it in the indictment, which was most usually done in the disjunctive, in or near, the highway ; and this mode of pleading was held to be sufficient.^ In indict- ments on those statutes which are general, and are not con- fined to a robbery in or near the highway, it is better to omit any particular description of the place, although a variance would be immaterial.' 1 Commonwealth v. Clifford, 8 Cushing, 215. See Kex v. Hall, 3 Carring- ton & Payne, 409. ^ Rex V. Stacker, 5 Modern Rep. 137 ; Salkeld, 342, 371 ; 2 East, P. C. 784 ; 1 Gabbett, Crim. Law, 237. This case was decided on the principle, that where an indictment is founded on a statute which describes the offence disjunctively, it is sufficient to follow the words of the statute. But the Supreme Court of Massachusetts, in a case not yet reported, have held a directly opposite doctrine. ' 2 Starkig, Crim. PI. (London ed. 1828,) 474, note r; 1 Gabbett, Crim. Law, 593. It was so decided in Rex v. Wardle, Russell & Ryan, C. C. 9 ; 2 East, P. C. 785, who was tried upon an indictment charging him with rob- bing one G. H., in an open field near the highway, and the jury having found him guilty of the robbery, but not near the highway, the judges held, that the conviction was right ; and that the circumstance of being in a field near the highway was immaterial. See also Rex v. Summers, 2 East, P. C. 785 ; R«x V. Darnford, 2 East, P. C. 785. The name of the owner of the house in which the robbery was committed seems to be immaterial. In Rex v. Pye, 2 East, P. C. 785, where the prisoner was convicted upon an indict- fiient which charged him with robbing a person in the dwelling-house of Aaron WilOTy, and it had not appeared who was the owner of the house in which the fact was committed, the judges held the conviction to be right. And so. where Susannali Johnstone was convicted on an indictment for robbing R. D. in the dwelling-house of Joseph Johnstone, and it appeared that the robberj- was committed by her in her husband's house, but his Christian name could not be proved, the conviction was held to be proper. Rex v. Johnstone, 2 East, P. C. 786. CHAP. XIV.] ROBBERY. 461 1. Indictment for robbery at convmxm law?^ The jurors, etc., upon their oath present, that C. D. late of, etc., on the first day of June in the year of our Lord ^, with force and arms, at B. in the county of S., in and upon one J. N., feloniously did make an assault,^ and the said J. N., in bodily fear and danger of his life, then and thefe feloniously did put, and one gold watch of the value of one hundred dollars, of the goods and chattels of the said J. N., from the person and against the will of the said J. N. then and there feloniously and violently did steal, take, and carry away ; against the peace, etc. , 2. For robbery^ the prisoner being armed loith a 'dangerous weapon. — Mass. Rev. Sts. ch. 125, § 13.^ The jurors, etc., upon their oath present, that C. D. late of, etc., on the first day of June in the year of our Lord , with force and arms, at B. aforesaid, in the county aforesaid, in and upon one J. N. feloniously did make an assault, and the said J. N. in bodily fear and danger of his life, then and there feloniously did put, and one gold watch, of the value of two hundred dollars, of the goods and chattels of the said J. N., from the person and against the will of the said J. N., ' Matthews, Crim. Law, 529. The indictment may charge the defend- ant with haying assaulted several persons, and stolen different sums from each, if the whole was one transaction. Regina v. Giddins, Carrington & Marshman, 634. ^ It is an essential part of the indictment, that the assault should be alleged to be made feloniously. And therefore in Rex v. Pelfryman, 2 Leach, C. C. (4th London ed.), 563 ; 2 East, P. C. 783, the judgment was arrested for this omission, though it charged that the prosecutor was feloniously put in fear and danger of his lifel See 1 Starkie, Crim. PI. (4th London ed.), 90 ; ante, p. 253. ' See Commonwealth v. Martin, 1 7 Massachusetts, (Rand's ed.), 359. 39* 462 BOBBERY. [chap. XLV. then and there feloniously, and by force and violence, did rob,i steal, take, and carry away, the said C. D. being then and there armed with a dangerous weapon, to wit, a pistol, with intent, if then and there resisted by the said J. N., the said J. N. then and there to kill; against the peace, etc., and contrary to the form of the statute in such case made and provided. 3. For robbery, the prisoner being armed with a dangerous weapon-itand striking and wounding the person robbed. — On the latter clause of the thirteenth section of the Eev. Sts. of Mass. ch. 125. « The jurors, etc., upon their oath present, that A. B. late of B. in the county of S., laborer, on the first day of June in the year of our Lord , with force and arms, at B. aforesaid, in the county aforesaid, in and upon one J. N., feloniously did make an assault, and the said J. N. in bodily fear and danger of his life, then and there feloniously did put, and sundry pieces of silver coin, current within this Common- wealth by the laws and usages thereof, amounting together to the sum of twelve dollars, and of the value of twelve doUars, of the moneys and property of the said J. N. from the person and against the will of the said J. N., then and there feloniously, and by force and violence did rob, steal, take, and carry away; and that the said A. B., was then and there armed with a certain dangerous weapon, to wit, a pistol, and being then and there so armed as aforesaid, the said A. B., with the dangerous weapon aforesaid, the said J. N. in and upon the face and head of the said J. N., then and there feloniously did strike and wound; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. ' The word " rob " is essential. Commonwealth v. CliflFord, 8 Gushing, 215, 217. CHAP. XLV.] ROBBERY. 463 4. For robbery, not being armed. — Rev. Sts. of Mass. ch. 125, § 15.1 The jurors, etc., upon their oath present, that C. D. late of, etc., laborer, on the first day of June in the year of our Lord , with force and arms, at B. aforesaid, in the county aforesaid, in and upon one J. N. feloniously did make an assault, and the said J. N. then and there feloniously did put in fear, and one gold watch, of the value of one hundred dol- lars, of the goods and chattels of the said J. N., from the per- son and against the wiU of the said J. N. then*nd there feloniously, and by force and violence, did rob, steal, take, and carry away ; aigainst the peace, etc., and contrary to the form of the statute in such case made and provided. 5. For attempting to extort money by threatening to accuse another of a crime. — Rev. Sts. of Mass. ch. 125, § 17. The jurors, etc., upon their oath present, that C. D. late of, etc., on the first day of June in the year of our Lord , with force and arms, at B. aforesaid, in the county aforesaid, unlawfully and maliciously did threaten one J. N.,.in a cer- tain conversation which the said C. D. then and there had of and concerning the said J. N., to accuse the said J. N. of hav- ing, here describe the accusation, with the intent by so doing thereby then and there to extort from the said J. N. a certain sum of money, to wit, the sum of five hundred dollars ; against the peace, etc., and contrary to the form of the stat- ute in such case made and provided. ' See Commonwealth v. Humphries, 7 Massachusetts, (Kand's ed.), 242 ; Commonwealth v. Clifford, 8;Cushing, 215, 217. CHAPTER XLVI. SEPTJLCHKES OP THE DEAD. 1. Em- digging up and carrying away a dead body} The jurors, etc., upon their oath present, that J. S. late of B. in the county of M., laborer, on the third day of August in the year of > our Lord -: — ^, with force and arms, at B. afore- said, in the county aforesaid, the churchyard of and belonging to the parish church of said B. there situate, unlawfully and wilfully did break and enter, and the grave there in which one J. N. deceased, had lately before then been interred, and then was, with force and arms, then and there unlawfully, wilfully, and indecently did dig open, and then and there the body of the said J. N. out of the grave aforesaid, unlawfully, wilfully, and indecently did take and carry away ; against the peace, etc. 2. For disinterring and removing a dead body without permis- sion. — Rev. Sts. of Mass. ch. 130, § 19. The jurors, etc., upon their oath present, that C. D. late of, etc., on the first day of June in the year of our Lord , at W. in the county of H., with force and arms, the common bury- ing-ground there situate,^ unlawfully and wilfully did break and enter, and a grave there, in which a certain human body, to wit, the body of one J. N,, had lately before been interred, and ' Archbold, Crim. PI. (Am. ed. 1846), 786. ' It is not necessary to allege to whom the burying-ground belonged. Com- monwealth i;. Cooley, 10 Pickering, 37. CHAP.XLVI.] SEPXJLCHEES OF THE DEAD. 465 then was, then and there unlawfully and wilfully did open, and the body of the said J. N. then and there in the grave aforesaid being, then and there unlawfully and wilfully did dig up, disinter, remove, and convey away from and out of the grave aforesaid, the said C. D. and E. F. then and there intending to use and dispose of the said body for the purpose of dissection ; ^ the said C. D. and E. F. not being then and there authorized so to do, either by the board of health, or the overseers of the poor, or the directors of the workhouse, or the selectmea of the said town of W., in which the said grare and the burying-ground aforesaid was and is situate ; ^ against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. ' This is a necessary averment. Commonwealth v. Slack, 19 Pickering, 304. ' It is sufficient to aver that the defendant was not authorized by the selectmen, etc., of the town where the body was buried. Commonwealth v. Loring, 8 Pickering, 369. CHAPTER XLVII. SLUNG SHOT. 1. For being armed with shmg shot when arrested while com- mitting a burglary. — Mass. St. 1850, ch. 194, § 1. The jurors, etc., upon their oath present, that C. D. late of W. in the county of "W., laborer, on the first day of June in the year of our Lord , in the night time of the same day, with force and arms, at W. in the county of W., the dwelling-house of one A. B. there situate, feloniously and burglariously did break and enter, with intent the goods and chattels of the said A. B., in the said dwelling-house then and there being, then and there feloniously and burglariously to steal, take, and carry away, in the dwelling-house aforesaid ; and that the said C. D., at the time said felony and burglary was committed, in manner and form aforesaid, to wit, on the said first day of June in the year aforesaid, in the night time of the same day, at W. aforesaid, in the county aforesaid, was arrested by one J. N., one of the constables of the said town of W., duly appointed and qualified to discharge and perform the duties of that office ; and that the said C. D., at the time said arrest was made, in manner and form aforesaid, was then and there armed with a certain dangerous weapon, of the kind usually called slung shot; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. CHAP. XLVII.] SLUNG SHOT. 467 ' 2. For selling slung shot. — Mass. St. 1850, ch. 194, § 2. The jurors, etc., upon their oath present, that C. D. late of W. in the county of W., laborer, on the first day of June in the year of our Lord , within this State, to wit, at W. aforesaid, in the county aforesaid, and Commonwealth afore- said, unlawfully did sell to one A. B. a certain weapon of the kind usually known as slung shot ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. CHAPTER XLVIII. SODOMY AND BESTIALITY. 1. Indictment for sodomy. — Rev. Sts. of Mass. ch. 130, § 14. The jurors, etc., upon their oath present, that C. D, late of B. in the county of S., laborer, on the first day of June in the year of our Lord , with force and arms, at B. aforesaid, in the county aforesaid, in and upon one J. N. feloniously did make an assault ; and then and there feloniously, wickedly, and against the order of nature, did commit the abominable and detestable crime against nature with the said J. N., by then and there having carnal knowledge of the body of the said J. N. ; against the peace, etc., jand contrary to the form of the statute, etc. 2. Another precedent for the same?- The jurors, etc., upon their oath present, that C. D. late of, etc., on, etc., with force and arms, at, etc., in and upon one J. N. feloniously did make an assault, and then and there felo- niously, wickedly, diabolically, and against the order of nature, had a venereal affair with the said J. N., and then and there carnally knew the said J. N., and then and there feloniously, wickedly, diabolically, and against the order of nature, with the said J. N. did commit and perpetrate the detestable and abominable crime of buggery ,2 not to be named among Chris- ' 2 Starkie, Crira. PI. (London ed. 1828), 435. " This word \s essential. 2 Starkie, Crim. PI. (London ed. 1828), 436, note; 1 Gabbett, Crim. Law, 167. CHAP. XLVrn.] SODOMY AND BESTIALITY. 469 tians ; ^ against the peace, etc., and contrary to the form of the statute, etc. 3. Indictment for bestiality. — Rev. Sts. of Mass. ch. 130, § 14.^ The jurors, etc., upon their oath present, that C. D. late of W. in the county of W., laborer, on the first day of June in the year of our Lord , at W. in the county of W., feloni- ously, wickedly, and against the order of nature, did commit the abominable and detestable crime against nature, with a certain beast, to wit, with a cow, by then and there having carnal knowledge of the body of the said cow ; against the peace of said CoHimonwealth, and contrary to the form of the statute in such case made and provided. ' These words are usual in indictments for this offence, and are retained in modern precedents. ^ An indictment for bestiality, which describes the animal as " a certain animal called a bitch," is sufficiently certain, although the females of foxes and some other animals are called bitches, as well as the female of the dog. Eegina v. Allen, 1 Carringtoii & Kirwan, 495. 40 CHAPTER XLIX. THREATENING LETTEK. 1. Indictment for threatening to accuse of an infamous crime} The jurors, etc., upon their oath present, that Henry Tiddeman, late of B, in the county of Middlesex, and within ' This precedent is taken from the case of Begina v. Tiddeman, 4 Cox, C. C. 387. It was contended, in arrest of judgment, that the indictment was defective for not alleging that the security sought to be obtained was the property of the prosecutor. And it was held, that it was not necessary to aver to whom the security belonged. Piatt, B., delivered the following judg- ment : " The indictment charges the prisoners with making certain threats, with intent to extort from the prosecutor a valuable security ; but it does not state whose property that security was, and the question is, whether or not the omission is fatal to its validity. The statute on which the indictment is framed is the 10 & H Vict. ch. 66, § 2, which makes it an offence to accuse or threaten to accuse any person of the offence specified, with a view or in- tent to extort or gain from such person any property, money, or security. The words of the statute are exceedingly important, because one of them, namely, ' extort,' has a certain technical meaning, which is defined in 2 Salk- eld, and when a man is charged with extorsively taking, the very import of the word shows that he is not acquiring possession of his own. The ordinary form of indictment for extortion may be found in Burns's Justice, and the language there shows that it is not at all necessary that the thing extorted should be said to be the property of any person. In Bex v. Norton, 8 Car- rington & Payne, 186, the indictment was held bad for want of such an aver- ment ; but that was an indictment under another statute, which made it nec- essary that the party charged under it should actually obtain the thing sought to be obtained ; but that is not so here, because, whether any thing is obtained or not, the crime is complete, and, therefore, whether the property belongs to the person threatened or not, is quite iminaterial, the offence is committed immediately the accusation is made, with the evil intent stated in the indictment." CHAP. XLIX.] THREATENING LETTER. 471 the jurisdiction of the Central Criminal Court, laborer, Wil- liam Landler, late of the same place, laborer, John Bennett, late of the same place, laborer, John Jones, late of the same place, laborer, otherwise called John Joyce, and John Sulli- van, late of the same place, laborer, on the second day of March in the year of our Lord , at B. aforesaid, in the county aforesaid, and within the jurisdiction of the said court, feloniously did threaten one Samuel Wyatt, to accuse the said Samuel Wyatt of having committed the abominable crime of buggery with the said Henry Tiddeman, with a view and with the intent in so doing then and there and thereby to extort and gain from the said Samuel Wyatt a certain valuable security for the payment of money, to wit, a security for the payment of the sum of fifty dollars ; contrary to the form of the 'statute in such case made and provided, and against the peace, etc. The Second Count alleged that the prisoners feloniously did accuse the said Samuel Wyatt of having committed the abominable crime, etc., with the said Henry .Tiddeman. Third Count. — That they feloniously did threaten the said Samuel Wyatt, to accuse the said Samuel Wyatt of having attempted and endeavored to commit the abominable crime, etc., with the said Henry Tiddeman. Fourth Count. — Tliat they did accuse the said Samuel Wyatt of having attempted and endeavored to commit the abominable crime of buggery with the said Henry Tiddeman. Fifth Count. — That they feloniously did threaten the said Samuel Wyatt, to accuse the said Samuel Wyatt of a cer- tain infamous crime, that is to say, of having made to the said Henry Tiddeman a certeiin solicitation, whereby to move and induce the said Henry Tiddeman to commit with said Samuel Wyatt the abominable crime, etc. Sixth Count. — That they did accuse the said Samuel Wyatt of a certain infamous crime, that is to say, of having made to the said Henry Tiddeman a certain solicitation, whereby to move and induce the said Henry Tiddeman to commit with the said Samuel Wyatt the abominable crime, ■ etc. 472 THEBATENINS LETTER. [CHAP. XLIX. Seventh Count. — That they did threaten the said Samuel Wyatt, to accuse the said Samuel Wyatt of having com- mitted the abominable crime, etc.. Eighth Count. — That they did accuse the said Samuel Wyatt of having committed the abominable crime, etc. Ninth Count. — That they did threaten the said . Samuel Wyatt, to accuse the said Samuel Wyatt of having attempt- ed and endeavored to commit the abominable crime, etc. Tenth Count. — That they did accuse the said Samuel Wyatt of having attempted and endeavored to commit the abominable crime, etc. Eleventh Count. — That they did threaten one Samuel Wyatt, to accuse the said Samuel Wyatt of having com- mitted the abominable crime, etc., with the said Henry Tid- deman, with a view and intent thereby to extort money from the said Samuel Wyatt. There were nine other counts, only varying from the first ten as the eleventh did in alleging the intent to be to extort money. There was no allegation in any count as to whose property the security or the money was. 2. For sending a letter, threatening to accuse a person of a crime.— Mass. Rev. Sts. ch*. 125, § 17,i The jurors, etc., upon their oath present, that C. D. late of F.in the county of M., laborer, on the first day of June in the year of our Lord , at F. in the county of M., feloniously, knowingly, wilfully, and maliciously did threaten one E. F., to accuse the said E. F. of having committed the crime of, here set forth the crime, by then and there feloniously, know- ingly, wilfully, and maliciously sending to the said E. F. a certain written communication, which said written communi- cation is of the following tenor, that is to say, here set out the ' It is not necessary to describe the crime in strict technical language. Kex V. Tucker, 1 Moody, C. C. 134. CHAP. XLIX.] THREATENING LETTBE. 473 letter correctly,^ with intent thereby then and there feloni- ously, knowingly, wilfully, and maliciously to extort money from the said E. F. ; against the peace of said Common- wealth, and contrary to the form of the statute in such case made and provided. 3. For sending a letter threatening to burn a dwelling-house. Mass. Rev. Sts. ch. 125, § 17. The jurors, etc., upon their oath present, that C. D. late of F. in the county of M., laborer, on the first day of June in the year of our Lord , at F. in the county of M., feloni- ously, knowingly, wilfully, and maliciously did threaten one E. F. to burn and destroy a certain dwelling-house, of the property of the said E. F. there situate, by then and there feloniously, knowingly, wilfully, and maliciously sending to the said E. ,F. a certain written communication, which said written communication is of the following tenor, that is to say, etc., with intent thereby then and there feloniously, knowingly, wilfully, and maliciously to extort money from the said E. F.; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. 4. For sending a threatening letter? The jurors, etc., upon their oath present, that W. B. late of of B. in the county of Surrey, laborer, on the first day of March in the year of our Lord , with force and arms, at B. aforesaid, in the county aforesaid, knowingly and feloni- ously did send to one J. H. a certain letter, directed to the said J. H., by the name and description of Mr. H., Esquire, accusing the said J. H. of, having committed a certain crime punishable by law with death, to wit, the abominable crime > The letter must be set out correctly. Kex v. Lloyd, 2 East, P. C. 1123. ' 1 Cox, C. C. Appendix, p. xi. 40* 474 THEEATENINfl LETTER. [CHAP. XLIX. of buggery, with the said "W. B., with a view and intent thereby then and there to extort and gain money from the said J. H. which said letter is as follows, that is to say : " Sir, — I write to inform you that you have being very unkind, trying to your extreme energies to reflect disparage- ment on my reputation ; in retalliation, I shall make known those liberties and diabolical actions you took with me when I was bathing you in your room, what I term sodoraiting. Some compensation I wish to receive from your hands,- in one way or another. I am waiting for an answer at the bot- tom of Stockwell Lane. — Obedient servant, but injured W. B. ; " contrary to the form of the statute in such case made and provided, and against the peace, etc. CHAPTER L. PLEAS. 1. Plea to the Jurisdiction?^ And the said J. S., in his own proper person, cometh into court here, and, having heard the said indictment read, saith, that the Court of Common Pleas here, ought not to take cognizance of the (burglary) in the said indictment above specified ; because, protesting that he is not guilty of the same, nevertheless the said J. S. saith, that, etc., so proceeding to state the matter of the plea, and conclude thus : And this the said J. S. is ready to verify ; wherefore, he prays judgment if the said Court of Common Pleas now here will or ought to take cognizance of the indictment aforesaid ; and that by the court here he may be dismissed and discharged, etc. 2. Replication to the same? And hereupon J. N., the Attorney- General of the said State, who prosecutes for the said State in this behalf, says, that notwithstanding any thing by the said J. S. above in pleading alleged, this court ought not to be precluded from taking cognizance of the indictment aforesaid; because he says that, etc., stating the matter of the replication : And this the said J. N. prays may be inquired of by the country, etc., or, if it conclude with a verification, then thu^ : — And this 1 Archbold, Crim. PI. (London ed. 1853), 109. ' Archbold, Crim. PI. (London ed. 1853), 110. 476 PLEAS. [chap. l. the said J. N. is ready to verify ; wherefore, he prays judg- ment, and that the said J. S. may answer to the said indict- ment. 2. Pica in abatement, of a wrong addition} And the said A. B., who, in and by the said indictment, is called by the name and addition of A. B. late of B. in the county of S., yeoman, in his own person cometh, and having heard the said indictment read, says, that at the time of the taking the said indictment, and long before, the said A. B. was and ever Since hath been, and still is inhabiting, commo- rant, and resident, in F., in the county of B.; without this, that the said A. B. now is, or at the taking of the said indictment, or at any time before, was inhabiting, resident, or commorant at B. in the said county of S., and this he is ready to verify. Wherefore, and because the said A. B. is not called in the said indictment, A. B. late of F. in the county of B., the said A. B. prays judgment of the said indictment, and that the same may be quashed. 3. Plea in abatement, that the defendamt has no addition? And the said A. B. comes in his proper person, and having heard the said indictment read, says, that at the time of the taking of the said indictment, and long before, was and yet is a yeoman ; and that the said indictment does not contain an addition of the said estate of the said A. B., nor of any estate, degree, or mystery of the said A. B. ; and this he is ready to verify. Wherefore, for want of the addition of the estate, degree, or mystery of the said A. B. in the said indictmfent, he prays judgment of the said indictment, and that the «ame may be quashed. ' 2 Starkie, Crim. PI. (London ed. 1828), 784. ' 2 Starkie, Crim. PL (London ed. 1828), 785. CHAP. L.] PLEAS. 477 4. Plea of misnomer of the Christian name?- And James Long, who is indicted by the name of George Long, in his own proper person cometh into court here, and having heard the said indictment read, saith that he was bap- tized ^ by the name of James, tp wit, at B. aforesaid, in the county aforesaid, and by the Christian name of James, hath also since his baptism, hitherto been called or known ; with- out this, that the said James Long now is or at any time hath hitherto been called or known by the Christian name of George, as by the said indictment is supposed"; and this the said James Long is ready to verify ; wherefore, he prayeth judgment of the said indictment, and that the same may be quashed, etc. 5, Replication? And hereupon J. N., Attorney-General of said Common- wealth, who prosecutes for said Commonwealth in this behalf, saith, that the said indictment, by reason of any thing by the said James Long in his said plea above alleged, ought not be quashed ; because he saith that the said James Long, long before and at the time of the preferring of the said indictment, was, and still is known as well by the name of George Long as by the name of James Long, to wit, at B. aforesaid, in the county aforesaid ; and this the said J. N. prays may be inquired of by the country, etc. ' Arclibold, Crim. PL (London ed. 1853), 110. A plea of misnomer can easily be framed from this precedent. If the defendant pleads not guilty, he cannot afterwards plead in abatement. Turns v. The Commonwealth, 6 Metcalf, 235; Commonwealth v. Dedham, 16 Massachusetts, (Rand's ed), 139. ' It is not essential that the plea should state that the defendant was bap- tized by such a name ; saying that it is his name, and by that name he was always called and known, is sufficient. = Archbold, Crim. PI. (London ed. 1853), 111. 478 PLEAS. [chap. l. 6. Demurrer to an indictment?- And the said J. S. in his own proper person cometh into court here, and, having heard the said indictment read, saith, that the said indictment, and the matters therein contained, in manner and form as the same are above stated and set forth, are not sufficient in law, and that the said J. S. is not bound by the law of the land to answer the same ; and this he is ready to verify: wherefore, for want of a sufficient indictment in this behalf, the said J. S. prays judgment, and that by the court he may be dismissed Elnd discharged from the said premises in the said indictment specified. 7. Joinder? And J. N., Attorney-General of said Commonwealth, who prosecutes for the said Commonwealth, in this behalf saith, that the said indictment, and the matters therein contained, in manner and form as the same are above stated and set forth, are sufficient in law to compel the said J. S. to an- swer the same; and the said J. N., who prosecutes as afore- said, is ready to verify and prove the same, as the court here shall direct and award: wherefore, inasmuch as the said J. S. hath not answered to the said indictment, nor hitherto in any manner denied the same, the said J. N., for the said Commonwealth, prays judgment, and that the said J. S. may be convicted of the premises in the said indictment specified. 8. Demurrer to a plea in bar? And J. N., Attorney-General of said Commonwealth, who prosecutes for the said Commonwealth in this behalf, as to the said plea of the said J. S. by him above pleaded, saith that the same, and the matters therein contained, in • Archbold, Crim. PI. (Am. ed. 1846), 102. " Archbold, Crim. PI. (Am. ed. 1846), 103. ' lb. CHAP. L.J PLEAS. 479 manner and form as the same are above pleaded and set forth, are not sufficient in law to bar or preclude the said Commonwealth, from prosecuting the said indictment against the said J. S. ; and that the said' Commonwealth is not bound by the law of the land to answer the same ; and this the said J. N., who prosecutes as aforesaid, is ready to ver- ify: wherefore, for want of a sufficient plea in this behalf, the said J. N., for the said Commonwealth, prays judgment, and that the said J. S. may be convicted of the premises in the said indictment specified. A demurrer to a plea in abate- ment is in the same form, exceptthat it concludes with praying judgment, and that the said indictment may be adjudged good, and that the said J. S. may further answer thereto, etc. 9. Joinder.^ And the said J. S. saith, that his said plea by him above pleaded, and the matters therein contained, in manner and form as the same are above pleaded and set forth, are suf- ficient in law to bar and preclude the said Commonwealth from prosecuting the said indictment against the said J. S. ; and the said J. S. is ready to verify and prove the same, as the said court here shall direct and award : wherefore, inas- much as the said J. N. for the said Commonwealth hath not answered the said plea, nor hitherto in any manner denied the same, the said J. S. prays judgment, and that by the court here he may be dismissed and discharged from the said prem- ises in the said indictment specified. The joinder is the same, if the demurrer be to a plea in abatement, except that it con- cludes with praying- judgment, and that the said indictment may be quashed, etc. 10. Special pleas? And the said J. S. in his own proper person cometh into cdurt here, and, having heard the said indictment read, saith, ' Archbold, Crim. PI. (Am. ed. 1846), 103. » Archbold, Crim. PI. (Am..ed. 1846), 105. 480 PLEAS. [chap. l. that the said Commonwealth ought not further to prosecute the said indictment against the said J. S. ; because he saith, that, etc., so proceeding to state the matter of the plea; and concluding thus : And fhis the said J. S. is ready to verify ; wherefore he prays judgment, and that by the court here he may be dismissed and discharged from the said premises in the said indictment above specified. 11. , Replication.^ And hereupon J. N., Attorney- General of the said Com- monwealth, who prosecutes for the said Commonwealth in this behalf, says, that, by reason of any thing in the said plea of the said J. S. above pleaded in bar alleged, the said Com- monwealth ought not to be precluded from prosecuting the said indictment against the said J. S. ; because he says, that, etc., so proceeding to state the matter of the replication ; and concluding thus : And this the said J. N. ■ prays may be inquired of by the country. Or, if it conclude with a verifica- tion, then thus : And this the said J. N. is reiady to verify ; wherefore he prays judgment, and that the said J. S. may be convicted of the premises in the said indictment above specified. If the replication conclude to the country, the similiter is then added, in making up the record : *' And the said J. S. doth the like. Therefore let a jury come," etc., so proceeding with ' the award of the venire. But if the replication conclude with a verification, the defendant must then rejoin. 12. Rejoinder. And the said J. S., as to the said replication of the said J. N. to the said plea by the said J. S., saith, that the Com- monwealth by reason of any thing by the said J. N. in that replication alleged, ought not further to prosecute the said indictment against the said J. S. ; because he saith, that, etc., ' Archbold, Crim. PI. (Am. ed. 1846), 105. CHAP. L.] PLEAS. 481 SO proceeding to state the matter of the rejoinder, and' conclud- ing thMS : And of the said S. puts himself upon the coun- try. Or, if it be' necessary to conclude with a verification, the conclusion may be in the same form as in a plea. 13. Autrefois acquit.^ And the said Robert Courtice Bird, and the said Sarah, the said wife of the said Robert Com-tice Bird, in their own proper persons, now come into court here, and having heard the said indictment read and the matters therein contained, say that they ought not to be put to answer the said indict- ment, they having been heretofore, in due manner of law, ac- quitted of the premises in and by the said indictment above specified and charged upon them ; and for plea to the said in- dictment they say, that the said Commonwealth ought not further to prosecute the said indictment against them, because they say that heretofore, to wit, at the, here set forth the cap- tion of the court, verbatim, the said Robert Courtice Bird and the said Sarah, the said wife of the said Robert Courtice Bird, stood indicted, and were duly arraigned upon a certain indictment which charged the said Robert Courtice Bird and the said Sarah, the said wife of the said Robert Courtice Bird, by the names and descriptions of Robert Courtice Bird, late of the parish of Buckland Brewer, in the county of Devon, laborer, and Sarah, the wife of the said Robert Coui- tice Bird, late of the same parish, for that the said Robert Courtice Bird and the said Sarah, the said wife of the said Robert Courtice Bird, etc., setting but the indictment in full, ut ante, p. 298. And the said Robert Courtice Bird, and the said Sarah, the said wife of the said Robert Courtice Bird, further say, that the said felony and murder so charged upon them in the said last-mentioned indictment as aforesaid, included • This plea is taken from the case of Eegina ». Bird, 5 Cox, C. C. 12; 2 Eng. Law- and Eq. Rep. 440 ; 1 Temple & Mew, C. C. 438, note ; and was drawn hj Mr. Kingdon, whose well-known abilities as a special pleader give it a peculiar value as a precedent. 41 482 PLEAS. [chap. l. divers assaults therein supposed and alleged to have been made and committed by the said Eobert Courtice Bi«i and the said Sarah, the wife of the said Eobert Courtice Bird, against the person of the' said Mary Ann Parsons, in the said indictment named. And the said Robert Coqrtice Bird and the said Sarah, the wife of the said Robert Courtice Bird, fur- ther say, that they did then and there respectively plead not guilty to the said last-mentioned indictment, and that they were thereupon then and there, in due form of law respect- ively tried upon the said last-mentioned indictment by a jury of the said county then and there in due form of law sum- moned, impanelled, and sworn to speak the truth of and con- derning the premises in the said last-mentioned indictment mentioned, and to try the said issues so joined between our sovereign Lady the Queen and the said Robert Courtice Bird and the said Sarah, the said wife of the said Robert Courtice Bird, respectively as aforesaid, and wbich said jury upon their oaths did then and there say that the said Robert Courtice Bird and the said Sarah, the said wife of the said Robert Courtice Bird, respectively were not guilty of the premises in the said last-mentioned indictment specified and charged on them respectively as aforesaid, as the said Robert Courtice Bird and the said Sarah, the said wife of the said Robert Courtice Bird, by their pleas to the said last-men- tioned indictment respectively alleged, whereupon it was then and there considered by the said last-mentioned court that the said Robert Courtice Bird an^d the said Sarah, the said wife of the said Robert Courtice Bird, of the premises aforesaid, in the said last-mentioned indictment specified and charged on them respectively as aforesaid, should be discharged and go acquitted thfereof without day, as by the record of the said proceedings now here appears. And the said Robert Courtice Bird and the said Sarah, the said wife of the said Robert Courtice Bird, further say, that the said Robert Cour- tice Bird and the said Sarah, the said wife of the said Robert Courtice Bird, now here pleading, and the said Robert Cour- tice Bird and the said Sarah, the said wife of the said Robert Courtice Bird, in the indictment aforesaid named and thereof CHAP. L.] PLEAS. 483 acquitted as aforesaid, are respectively the same identical per- sons respectively, and not other or different persons respect- ively, and that the said Mary Ann Parsons, in the said last- mentioned indictment named is the same identical Mary Ann Parsons as is named in the indictment to which the said Robert Courtice Bird and the said Sarah, the said wife of the said Robert Courtice Bird, are now here pleading ; and that the said assaults so included in the said felony and murder so charged upon the said Robert Courtice Bird and the said Sarah, the said wife of the said Robert Courtice Bird, are now here pleading; and that the said assaults so included in the said felony and murder so charged upon them, the said Robert Courtice Bird and' the said Sarah, the said wife of the said Robert Courtice Bird, in the said indictment in this plea mentioned in this behalf, and therein supposed and alleged to have been made and committed by them against the person of the said Mary Ann Parsons as afore- said, are the same identical assaults, beatings, ill-treatings, and woundings respectively as in the said indictment to which the said Robert Courtice Bird and the said Sarah, the said wife of the said Robert Courtice Bird, are now here pleading, are respectively supposed and alleged to have been made, done, given, and committed respectively by the said Robert Courtice Bird and the said Sarah, the said wife of the said Robert Courtice Bird, respectively, and not other or dif- ferent. Wherefore, they pray judgment of the court here, whether the said Commonwealth will or ought further to prosecute, impeach, or charge them, on account of the premises in the said indictment, to which they are now here pleading, contained and specified, and whether they ought to answer thereto respectively, and that they inay be dismissed this court without delay. 484 PLEAS [chap. l. 14. Another precedent for the same?- And the said William Sheen the younger, being brought to the bar of. this court, and having heard the said indict- ment read, and the matters therein contained, says' that he ought not to be put to answer the said indictment, he having been heretofore, in due manner of law, acquitted of the premises in and by the said indictment above specified and charged upon him ; and for plea to the said indictment, he says, that heretofore, to wit, at the Supreme Judicial Court, begun and holden at, etc., here set forth the caption of the court verbatim, the said William Sheen the younger, was duly arraigned upon a certain indiqjbment, which charged him, the said William Sheen the younger, by the name and description of William Sheen the younger, late of B. in the county of M., laborer, here set out the former indictment ver- batim, concluding with the words, against the peace, etc., to which said last-mentioned indictment, he did then and there plead not guilty, and thereupon a jury then and there duly summoned, impanelled, and sworn to try the said issue so joined between the said Commonwealth and the said William Sheen the younger; upon their oaths did say, that the 'said William Sheen the younger, was not guilty of the said felony and murder by the said indictment supposed and laid to his charge ; whereupon it was then and there considered by the said court, that the said William Sheen the younger, should go thereof acquitted without day, as appears by the record of ' the said proceedings now here remaining in court. And the said William Sheen the younger, avers that the said William Sheen the younger, mentioned in the former indictment, and the said William Sheen the younger, who is charged by this present indictment, are one and the same person, and not divers and different persons, and that the said infant men- tioned in the said first indictment, and the male child in this ^ Rex V. Sheen, 2 Carrington & Payne, 634, 635. CHAP. L.] PLEAS. 485 present indictment mentioned, are one and the same male child, and not divers and different children ; and the said Wil- liam Sheen the younger, further avers that the felony and murder in the said former mentioned indictment mentioned, and the felony and murder in this present indictment men- tioned, are one and the same 'felony and murder, and not divers and different felonies and murders. And the said Wil- liam Sheen the younger further avers, that the said male child, described by the name of Charles William Beadle in the said former indictment mentioned, was as -well known by the said name of Charles William Beadle, as by any of the several names and descriptions of Charles William, William, Billy, Charles, or William Sheen, or a certain male bastard child, as he is in and by the present indictment described ; and this he is ready to verify. Wherefore, the said William Sheen the younger, prays the judgment of the court here, if he ought to be put further to answer this present indictment. And whether the said Commonwealth will or ought further to prosecute or impeach him, the said William Sheen the younger, on account of the premises in this present indict- ment contained. And that he may be dismissed the court and go without day. 15. Replication. And Thomas Shelton, the Attorney-General of said Com- monwealth, who prosecutes for said Commonwealth on this behalf, says that the said Commonwealth ought not to be barred from further prosecuting the said indictment, because he saith that William Sheen the younger, was not heretofore acquitted of the premises, charged in and upon him by this present indictment ; for, although true it is, that the said Wil- liam Sheen the younger, was acquitted upon the said indict- ment in his said plea mentioned, and although true it is, that the said infant in the said former indictment mentioned, and the male child in this present indictment mentioned, is the same child, and not another and different child ; yet for replica- tion in this behalf, he says, that the said male child was not 41* 486 PLEAS. [chap. l. known as well by the name of Charles William Beadle, as by any or either of the several names by which he is. named in the present indictment ; and this the said Thomas Shelton, on behalf of said Commonwealth, prays may be inquired of by the country. 16. Autrefois convict. And the said C. D. in his own proper person cometh into court here, and having heard the said indictment read, saith that the said Commonwealth ought not further to prosecute the said indictment, against the said C. D. in respect of the offence in the said indictment rhentioned, because he saith, that heretofore, to wit, at the Supreme Judicial Court, begun and holden at, etc., set forth the former judgment and convic- tion verbatim, amd then proceed as follows : as by the record thereof, in the said court remaining, more fully and at large appears, which said judgment and conviction still remain in full force and effect, and not in the least reversed or made void. And the said C. D. further saith that the said C. D., and the said C. D. so indicted and convicted are one and the same person, and not other or different. And the said C. D. further saith that the burglary of which the said C. D. was so indicted and convicted as aforesaid, and the burglary for which he is now indicted, are one and the same burglary, and not other or different. And this the said C. D. is ready to verify ; wherefore he prays judgment if the said Common- wealth ought further to prosecute the said indictment against the said C. D. in respect of the said offence in the said indict- ment mentioned, and that the said C. D. may be dismissed and discharged from the same. And a;s to the felony and burglary aforesaid in the said indictment mentioned, the said C. D. saith he is not guilty thereof, and therefore puts himself upon the country, etc. CHAP. L.J PLEAS. 487 17. Replication}- And hereupon the said J. H. C, Attorney- General of said Commonwealth, who prosecutes for said Commonwealth in this behalf, says that by reason of any thing in the said plea of the «aid C. D. above pleaded in bar alleged, the said Common- wealth ought not to be precluded from prosecuting the said indictment against the said C. D. ; because he says, that there is not any record of the said supposed conviction in manner and form as the said C. D. hath above in his said plea alleged ; and this the said J. H. C. prays may be inquired of by the country, etc. 1 Archbold, Crim. PI. (London ed. 1853), 121. INDEX TO PRECEDENTS. ABATEMENT.- Plea in, of a wrong addition, 476. That the defendant has no addition, 476. Of misnomer of the Christian name, 477. Replication, 477. ABDUCTION. Of an unmarried woman for the purpose of prostitution, 2. Of an unmarried woman under the age of sixteen years, for" the pur- pose of effecting a clandestine marriage, 2. For a conspiracy to procure the abduction of a female. First Count on St. 4 and 5 P. and M. ch. 8. Did, for lucre, unlawfully conspire, by false representations, to take E. T, a girl under sixteen, from the care of M. D., and to contract matrimony with E. G. W., to the utter heaviness of her father, 3. Second Count, on 4 and 5 Philip and Mary, ch. 8. Did, for lucre, un- lawfully conspire to take E. T. from the care of M. D., to the great disparagement of the said E. T., 5. Third Count, on St. Henry 7, ch. 2. Did, for lucre, conspire to felo- niously take and convey away E. T., an heiress, and marry her ; to the disparagement of herself and discomfort of her friends, 6. Fourth Count, on St. 3 Henry 7, ch. 2. Did, for lucre, unlawfully 490 INDEX TO PRECEDENTS. conspire to marry E. T., the only child of W. T., a man of large estate, to E. G. W., with intent to procure for the said E. G. W., the said estate ; to the great damage of W. T., 7. Fifth Count, on St. 3 Henry 7, ch. 2. Did conspire to procure E. T., an heiress, to marry E. G. W., without the knowledge of her father ; to the great disparagement of E. T., 8. ABORTION. For administering poison to procure miscarriage, 9. For using instruments to procure miscarriage, 10. For circulating an advertisement relative to procuring abortion, 11. Indictment against the principal for using an instrument to procure abortion, and against an accessory before the fact, 11. ACCESSORY. Against the principal in the second degree, 14. Against an accessory before the fact, together with the principal, 15. Against an accessory before the fact, the principal being convicted, 15. Against an accessory before the fact, 16. Against an accessory before the fact, as for a substantive felony, 1 7. For soliciting a person to commit an offence, 1 7. Against aij accessory after the fact, with the principal, 18. Against an accessory after the fact, the principal being convicted, 18. Against an accessory after the fact, 19. For administering chloroform with intent to commit a felony, 21. ADULTERY. Adultery by a married man with an unmarried woman, 23. Against both parties jointly, 24. Adultery by an unmarried man with a married woman, 24. AFFRAY. Indictment for an affray, 27. ARSON AND OTHER BURNING. Arson at 'common law, 32. For burning a dwelling-house in the night time, 32. For setting fire to a building, whereby a dwelling-house was burnt in the night time, 83. For burning a dwelling-house in the daytime, 33. For setting fire to a building adjoining a dwelling-house in the daytime, whereby a dwelling-house was burnt in the daytime, 34. For burning a city hall in the night time, 35. For burning a meeting-house in the daytime, 35. INDEX TO PRECEDENTS. 491 For burning a building erected for a dwelling-house, and not completed or inhabited, 36. For burning a vessel lying within the body of the county, 36. For burning a dwelling-house with intent to injure an insurance com- pany, 37. For setting fire to stacks of hay, 37. ASSAULT. For an assault, not accompanied with a battery, 38. For a common assault and battery, 39. For an assault and false imprisonment, 39. For throwing corrosive fluid with intent, etc., 40. For an assault upon a woman pregnant with child, 40. For an indecent assault, 41. For an indecent assault with intent to have improper connection, 41. For an indecent assault by other means, 42. For a felonious assault with intent to maim, 42. For a felonious assault with intent to murder, 43. For a felonious assault with intent to commit a rape, 45. For a felonious assault with intent to abuse a child under -the age of ten years, 45. For a felonious assault upon a boy with intent to commit the crime against nature, 46. For a felonious assault with intent to rob, being armed, 46. For assaulting and obstructing an officer in the discharge of his duties, 47. ATTEMPTS TO COMMIT CKIMES. For an attempt to burn a dwelling-house, 50. For an attempt to burn a dwelling-house in the night tiilie, by breaking and entering a building, and setting fire to the same, 51. For an attempt to commit larceny from the person of an individual, by picking his pocket, 52. For an attempt to murder by drowning, 52. For an attempt to murder by poisoning, 53. For attempting to commit suicide, 53. AUTREFOIS ACQUIT. Plea of, 481. Another precedent for the same, 484. Replication, 485. AUTREFOIS CONVICT. Plea of, 486. Replication, 487. 492 INDEX TO PEBOBDENTS. B. BARRATKY. Indictment for being a common barrator, 58. BLASPHEMY. Indictment for a blasphemous libel, 60. For blasphemy, by blaspheming the holy name of the Lord, 60. BRIBERY. Indictment for attempting to bribe a constable, 62. BURGLARY. Indicttnent for burglary and larceny, 76. For burglary, by breaking out of & house, 77. For burglary and larceny and assault with intent to commit murder, 77. For burglary with violence, 78. For burglary and rape, 79. For burglary with intent to ravish; with a count for burglary with vio- lence, under St. 7 Wm. and 1 Vict. eh. 86, § 2, 79. For burglary and larceny at common law, by breaking info a parish church; with a count upon the St. 7 and 8 Geo. 4, ch. 29, for sacri- lege, in breaking out of a church after the committal of^larceny therein, 80. For being in a dwelling-house with intent to commit felony, and break- ing out contrary to the St. 7 and 8 G«o. 4, ch. 29, § 11, 81. For burglary with intent to commit felony, laying also burglary with vio- lence, 81. Burglary, laying an accessory before and after the fact, 82. For having in possession implements of burglary, 83. For being found by night armed with intent to break into a dwelling- house and commit a felony therein, 84. CHEATS AT COMMON LAW, AND STATUTORY CHEATS BY FALSE PRETENCES. Indictment at common law for selling by false scales, 95. Obtaining goods by false pretences, 96. For obtaining money on a false representation respecting the value and history of a house which the prisoner sold to the prosecutor, 97. For obtaining money by falsely pretending that certain property of the INDEX TO PRECEDENTS. 493 • defendant was unincumbered, and that he himself was free from debts and liabilities, 100. Against a defendant for obtaining money by falsely pretending that he had then purchased certain property, which it was necessary he should immediately pay for, 104. •For obtaining money by the false pretence on the part of the defend- ant, that he was entitled to grant a lease of certain freehold prop- erty, 107. For obtaining money by falsely pretending that the defendant was the authorized agent of the Executive Committee of the Exhibition of the ^Vorks of Industry of all Nations, and that he had power to allot spaces to private individuals for the exhibition of their merchandise, 109. Against the defendants for obtaining money under false pretences ; the false pretences being, that one of the defendants having advanced money to the other on a deposit of certain title deeds, had himself deposited the deeds with a friend, and that he required a sum of money to redeem them ; with counts for conspiracy, 115. Obtaining money and goods by means of a flash note, 120. Obtaining money by means of a promissory note of a bank which has stopped payment, 121. Obtaining goods by a check on a bank where the defendant had no effects, 122. Obtaining money by false statement of authority to receive debts, 123. Obt^ning money by pretence of payment to a third person, 124. Obtaining money by false pretences as to the name and circumstances of the defendant, 124. Obtaining money by personating another, 125. Obtaining money by false representations as to the employment and condition of the defendant, 126. Obtaining a horse by false representations, 127. Obtaining goods by falsely pretending that the defendant was a trader in solvent circumstances. Obtaining money by false allegations of the delivery of goods, 128. Obtaining money by false pretence as to the amount due for carriage of a parcel, 129. Obtaining money by rendering a false account of work done by third parties, 130. Obtaining money by falsely pretending that a member of a Friendly Society was indebted to the Society, 131. Falsely pretending that the Rules of a Friendly Society had been duly certified, 131. Obtaining money by means of a false warranty of the weight of goods, 133. Obtaining money by a. false warranty of goods, 133. 42 • • 494 INDEX TO PEECBDENTS. Falsely pretending that goods were of a particular quality, 134. Attempting to obtain money by means of false pretences, 135. COMPOUNDING OFFENCES. Indictment for compounding a felony, 138. CONSPIRACY. For a conspiracy to indict prosecutors for keeping a bawdy-house, and extorting money from them on condition that such prosecution should be foregone, 145. For a conspiracy to defraud a railway company by travelling without a ticket on some portion of the line, obtaining a ticket at an inter- mediate station, and then delivering it up at the terminus, as if no greater distance had been travelled over by the passenger than from such intermediate station to the terminus, 150. For a conspiracy to induce a person of unsound mind ±o sign a paper authorizing the defendants to take possession of his goods, 156. For conspiracy to defeat the course of public justice, by giving false evidence, and suppressing facts, on an inquiry into a charge of felony before a magistrate, 158. For a conspiracy by the maker of two promissory notes^and two other persons, fraudulently to obtain said notes from the holder, 161. Against two persons for conspiracy to procure the defilement of a young female, 164. For a conspiracy to procure the defilement of a female, 165. For conspiring wrongfully to charge the inhabitants of a parish with the maintenance of a child, 166. For conspiracy to defraud intending emigrants of their passage-money by pretending to have an interest in certain ships, 168. For a conspiracy, by false representations, to induce a party to forego a claim, 174. DEMURRER. Demurrer to an indictment, 478. Joinder, 478. Demurrer to a plea in bar, 478. Joinder, 479. DISTURBAJJCE OF PUBLIC MEETINGS, ETC. For disturbing a school, 176. For disturbing a funeral procession by fast driving, 177. For disturbing religious worship, 177. For disorderly conduct at an election, 178. INDEX TO PKECEDENTS. 495 DUELLING AND CHALLENGING TO FIGHT. For murder in a duel fought without the State, 179. For sending a written message to a person, to fight a duel, 181. For posting another for not fighting a duel, 181. E. ELECTIONS. Against a person for voting, knowing himself not to be a qualified voter, 183. Against a person for giving in more than one ballot at one time of bal-» loting, 183. Against a person for giving false answers to the selectmen presiding at an election, in order to procure his name to be inserted on the list of voters, and to obtain permission to vote, 184. For attempting to influence a voter by threatening to discharge him from employment, 185. EMBEZZLEMENT. Against the president and cashier of a bank for an embezzlement, 187. Against a clerk for embezzlement, 189. Against a carrier far embezzlement, 191. EMBRACERY. Indictment for embracery, by persuading a juror to give his verdict in favor of the defendant, and for sohciting other jurors to do the like, 193. ESCAPE. Indictment against a constable for a negligent escape, 195. Another precedent for the same, 196. For not conveying an offender to prison, 179. Indictment for escaping out of the custody of a constable, 199. Indictment against a jailer for a voluntary escape, 199. Indictment for breaking prison, 200. For conveying instruments to a prisoner to enable him to escape, 202. EXTORTION. Indictment against a constable for extortion, 203. 496 INDEX TO PRECEDENTS. F. FORCIBLE ENTRY AND DETAINER. For forcible entry and detainer at common law, 208. For forcible entry into a freghold on St. 5, R. 2, ch. 8, 209. Indictment for a forcible entry into a leasehold, etc., on St. 21, J. 1, ch. 15, 210. For a forcible detainer on St. 8 H. 6, ch. 9, or 21 J. 1, ch. 15, 210. FORGERY AND COUNTERFEITING. Forgery at common law, 223. For uttering and publishing as true a forged promissory note, 224. For forging a promissory note, 224. For counterfeiting a bank-bill, 225. For having in possession at the same time, ten or more counterfeit bank- bills with intent to utter and pass the same as true, 225. For passing a counterfeit bank-bUl, 226. For having in possession a counterfeit bank-bill with intent to pass the same, 227. For making a tool to be used in counterfeiting bank-notes, 228. For having in possession a tool to be used in counterfeiting bank-notes with intent to use the same, 229. For counterfeiting current coin, 229. For having ten counterfeit pieces of coin with intent to pass the same, 230. For having less than ten counterfeit pieces of coin with- intent to pass the same as true, 230. For uttering and passing counterfeit coin, 231. For having in possession tools for coining with intent to use the same, 231. FORNICATION. Indictment for fornication, 233. FRAUDULENT CONVEYANCE. Indictment for a fraudulent conveyance, St. 13 Eliz. ch. 5, § 3, 234. H. HOMICIDE. For manslaughter against th# engineer of a steamboat, for so negligently managing the engine that the boiler burst, and thereby caused the death of a passenger, 254. INDEX TO PKECBDENTS. 497 For manslaughter by neglect to give a proper signal to denote the ob- struction of a line of railway, whereby a collision took place and a passenger was killed, 2G3. For manslaughter against the driver and stoker of a railway engine, for negligently driving against another engine, whereby the deceased met his death, 271. For manslaughter against the keeper of an asylum for pauper children, for not supplying one of them with proper food and lodging, whereby the child died, 283. Indictment for murder, by, inter alia, a series of beatings, 298. For murder by'striking with an axe, 304. For murder by throwing stones, 304. For murder by causing prenteture birth, 305. For murder by throwing upon the ground, beating, etc., 307. For murder by stabbing with a knife, 309. • For murder by selling poisonous berries as good and wholesome food, 310. For murder by stabbing with a knife, 311. For murder by inflicting a blow on the head with a hammer, 312. For murder by striking, kicking, etc., 313. For murder in some way and manner, etc, unknown, 314. For murder by shooting with a pistol, 314. For murder by cutting the throat, 315. For murder by throwing a knife, 316. For murder by casting a stone, 317. For murder by striking with a poker, 317. For murder by beating with fists, and kicking on the ground, 318. For murder by choking and strangling^ 319. For murder by riding over a person with a horse, 320. For murder by strangling with a handkerchief, 320. For the murder of a bastard child by folding in a cloth, 321. • For murder by throwing a bastard child into a privy, 322. For the murder of aT)astard child by strangling, 323. For the murder of a bastard child by hiding and starving it, 323. For murder by drowning, 324. For murder by poisoning, 325. For murder by placing poison so as to be mistaken for medicine, 326. HOUSES OF ILL FAME. For keeping a house of iU fame, 328. For letting a house to a woman of ill fame, at common law, 329. 42* 498 INDEX TO PRECEDENTS. INCEST. Indictment for incest, 330. JURISDICTION. Plea to, 475. «. Eeplication, 475. L. LARCENY. * Fgr simple larceny at common law, 341. For larceny by the cashier of a bank, 341. For breaking and entering a railroad depot in the night time, with intent to commit larceny, 342. For breaking and entering a stable in the night time, and committing larceny therein, 342. For breaking and entering a shop in the night time, adjoining to a dwelling-house, with intent to commit the crime of larceny, and ac- tually stealing therein, 343. For breaking and entering a shop in the night time, and committing a larceny therein, 344. For breaking and entering a vessel in the night time, and committing a larceny therein, 344. For entering a dwelling-house in the night time, without breaking, some persons being therein, and being put in fear, 345. For breaking and entering a dwelling-house in the daytime, the owner being therein, and being put in fear, 345. Larceny in a dwelling-house in the night time, 346. Breaking and entering a city hall, and stealing therein in the night time, 347. For breaking and entering a meeting-house in the night time, and com- mitting a larceny therein, 348. For stealing in a building that is on fire, 348. For stealing property removed in consequence of alarm caused by fire, 349. For a lai-ceny from the person, 349. For larceny of real property, 349. LEWDNESS AND LASCIVIOUS COHABITATION. Indictment at common law for exposing the person, 351. For lewd and lascivious cohabitation, 352. For open and gross lewdness and lascivious behavior, 352. INDEX TO PRECEDENTS. 499 LIBEL. Indictment for libel and plea of justification under Lord Campbell's act, 356. Indictment for a false defamatory libel, 365. Indictment for a libel against a judge and jury in the execution of their duties, 366. Indictment for slanderous words to a ma^strate, 367. Indictment for a libel on an attorney, 368. Indictment for hanging a man in effigy, 369. M. MAINTENANCE. Indictment for maintenance, 371. MALICIOUS MISCmEF AND WILFUL TRESPASS. For maiming a horse, 373. For poisoning a horse, 374. For beating a horse, 374. For exposing a poisonous substance with intent that it should be taken and swallowed by a horse, 376. For injuring a liorse by shooting him, 375. For breaking down a dam, 376. For destroying the machinery of a water mill, 376. For drawing off the water contained in a mill-pond, 376. For cutting down an ornamental tree, 377. For destroying a tree growing in a cemetery, 377. For breaking glass in a building, 377. For breaking down a fence, 378. For breaking down a guide-board, 378. For cutting down a timber tree, 379. For destroying plants, etc., in a garden on the Lord's day, 379. For malicious injury to ice taken as an article of merchandise, 380. For destroying, by explosion, a dwelling-house, 380. For exploding gunpowder in a house with intent, etc., 381. For defacing a dwelling-house by throwing filthy substances into it, 381. For attempting to obstruct engines and carriages passing upon a rail- road, 381. For obstructing engines, etc., 382. For throwing a stone against a railroad carriage with intent, etc., 383. MAYHEM. . / For mayhem by slitting the nose. Q j ■^-; 500 INDEX TO PRECEDENTS. N. NDISANCE. Nuisance by deleterious smoke and vapors, 385. Nuisance by rendering water unfit to drink, 386. Nuisance by diverting a watercourse, 386. Against a parent for not giving his deceased child a Christian burial, 387.' For bringing a horse infected with the glanders into a public place, 390. Nuisance for carrying on a trade offensive to the smell, 393. Against a town for not repairing a highway, 393. For keeping a disorderly house, 395. For carrying on an offensive trade, 396. For keeping a bawdy-house, 397. For keeping a common gaming-house, 397. O. OFFENCES AGAINST THE PUBLIC HEALTH. For selling unwholesome meat, 399. For adulterating bread for the purpose of sale, 399. For selling adulterated medicine,, 400. For selling a diseased cow in a public market, 400.* PERJURY. Indictment for perjury committed at the Central Criminal Court, on the trial of an indictment for wounding with intent to murder, 408. For perjury committed before a grand-jury, 4U- . For perjury committed at the trial of an indictment at the Central Criminal Court, 415. For perjury committed in an examination before a commissioner of bankruptcy, 421. For perjury against a witness who, on a former trial, had sworn that a note was given to the plaintiff for the purpose of being discounted merely; and not in payment of a debt, 430. For perjury before a grand-jury, 435. PLEA IN BAR. Form of, 479. Replication, 480. Similiter, 480. Rejoinder, 480. INDEX TO PRECEDENTS. 501 POLYGAMY. Indictment for polygamy, 439. For polygamy by continuing to coliabit with a second wife in this State, 440. E. RAPE. Indictment for rape, 443. For rape, 443. For carnally knowing and abusing a woman child under the age of ten years, 444. KECEIVING STOLEN GOODS. Indictment against a receiver of stolen goods, as for a substantive felony, 448. Against a receiver of stolen goods, 449. Against a receiver of embezzled property, 450. EESCUE. Indictment for the rescue of a felon from a constable, 452. Another precedent for the same, 454. KIOT. For riot and assault, 456. For riot and tumult, 456. For remaining one hour after proclamation made, 457. ROBBERY. Indictment for robbery at common law)' 461. For robbery, the prisoner being armed with a dangerous weapon, 461. For robbery, the prisoner being armed with a dangerous weapon, and striking and wounding the person robbed, 462. For robbery, not being armed, 462. For attempting to extort money by threatening to accuse another of a crime, 463. • S. SEPULCHRES OF THE DEAD. For digging tip and carrying away a dead body, 464. For disinterring and removing a dead body without permission, 464. 502 INDEX TO PBBCEDENTS. SLUNG SHOT.« For being armed with slung shot when arrested while committing a burglary, 466'. For selling slung shot, 467. SODOMY AND BESTIALITY. Indictment for sodomy, 468. Another precedent for the same, 468. Indictment for bestiality, 469. T. THREATENING LETTER. Indictment for threatening to accuse of an infamous crime, 470. For sending a letter threatening to accuse a person of a crime, 472. For sending a letter threatening to burn a dwelling-house, 473. For sending a threatening letter^ 473.